The Health and Safety Executive (‘HSE’) has taken landmark action by issuing its first Prohibition Notice to an occupational health service provider, finding that inadequate health surveillance was putting workers at risk of ‘serious and irreversible harm’.
The provider, who has not been named, was found to be delivering health surveillance through staff who were inadequately trained, unqualified, and unsupervised. This meant that early signs of occupational diseases such as asthma, dermatitis and noise-induced hearing loss were at risk of being undetected.
HSE issued a Prohibition Notice to the provider on the grounds of risk of serious personal injury.
What is a Prohibition Notice?
A Prohibition Notice is a formal document issued by either an HSE or local authority inspector, which creates a legal obligation on an employer to stop a particular activity immediately. The prohibition may be lifted once appropriate measures are taken to eliminate or reduce the risk. The consequences of failing to comply with a Prohibition Notice can be severe; an employer could face criminal prosecution, resulting in a fine or even imprisonment.
Subsequently, an Improvement Notice was issued following an investigation by HSE which found:
Lack of competent occupational health oversight
Inadequate clinical governance
No quality assurance processes
No clear procedures for escalating adverse findings or reviewing workplace controls.
What is an Improvement Notice?
An Improvement Notice is a document issued by the HSE or local authority which identifies a breach of health and safety law and gives a deadline for the employer taking specified action. It is a criminal offence to not comply with an Improvement Notice.
This is the first action taken by the HSE against an occupational health provider, highlighting the seriousness of adequate occupational health provisions and the significant risk that can be caused by a lack of competent provision.
This should be a warning to all employers who use occupational health providers, who may wish to review their occupational health service and ensure that it is sufficient to protect the health of their workers.
What does the law require businesses to do?
The HSE provides guidance on the legal requirements of employers in relation to workers’ occupational health.
Employers are required to prevent physical/mental ill health that may occur as a result of business activities. They should ensure that workers’ health is not adversely affected by their work and that workers are medically fit to carry out their work safely, including:
Health surveillance when necessary, i.e. repeated health checks to identify ill health caused by work
Ensuring workers are medically fit for their role
Reviewing risk assessments when a worker declares a health condition or returns from sickness absence
Medical surveillance for certain hazards such as asbestos, lead, and ionising radiation. In this instance, employers must use a competent occupational health doctor appointed by HSE.
Employers should carry out a risk assessment to determine what actions are needed to remain compliant with the law and minimise risks. Regulation 6 of the Management of Health and Safety at Work Regulations 1999 specifically requires that employers carry out health surveillance having regard to health and safety risks identified by their risk assessment.
Occupational diseases
The risk assessment carried out by the business should detail any specific risks of occupational diseases, such as hand-arm vibration syndrome (HAVS), silicosis, asbestosis and occupational hearing loss.
Some of these occupational diseases have specific regulations, such as The Control of Vibration at Work Regulations 2005 for HAVS and The Control of Noise at Work Regulations 2005 for hearing loss. Businesses must therefore ensure their compliance with the relevant regulations alongside health surveillance.
A robust program of health surveillance when these specific risks are identified is especially important. For example, the HSE have made clear that silicosis is a current priority for their enforcement, due to recent deaths of workers from the disease.
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There is a further requirement for cases of certain occupational diseases to be reported under Regulation 8 of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
The reportable diseases are:
Carpal tunnel syndrome
Cramp of the hand or forearm
Occupational dermatitis
Hand-arm vibration syndrome
Occupational asthma
Tendonitis or tenosynovitis.
Support from occupational health professionals
Health surveillance is usually set up and delivered with input from an occupational health professional. They can also support with other occupational health activities, such as managing sick leave.
Employers should ensure that they are aware of their needs in relation to occupational health, by reference to their risk assessment. These needs should be clearly communicated to the occupational health professional. Employers should then ensure these needs can be met by assessing the experience and competence of the occupational health professional and potentially arrange a site visit by the professional to observe work activities and understand risks of the business.
As well as a contract, a service level agreement should be agreed with the occupational health professional. This should include an outline of services provided, any process for referrals to occupational health, arrangements for an adequate system of records compliant with GDPR, frequency of health surveillance, governance arrangements, and any other relevant provisions. Having this agreement in place enables the employer to ensure that they have oversight of the occupational health provision, ensuring a quality service and ultimately minimising any risks to the health of their workers.
Following the appointment of an occupational health professional, the assessment and oversight of their competence and performance should remain an ongoing process by employers. This ensures that employers remain compliant with the law on an ongoing basis and do not put their workers at risk.
Contact our health and safety solicitors for further guidance and support.
Weightmans’ specialist health and safety regulatory solicitors can advise employers on their occupational health requirements to ensure correct procedures are in place and employers remain compliant with their legal obligations. The team also have extensive experience in supporting businesses with HSE investigations and prosecutions, as well as providing advice on RIDDOR reporting.
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