ABC of Work Related Disorders: LEGAL ASPECTS

Reporting of occupational disease

RIDDOR

Current levels of work related illness are difficult to ascertain accurately. Employers are required by statute to report cases of occupational disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)—recently updated with effect from 1 April 1996, with modest changes from the 1985 original. The list of reportable diseases has now been brought into line with the list of prescribed diseases. Previously, only 28 conditions were listed, with many important omissions such as occupational dermatitis. An employer needs to report a case of occupational illness only after being notified of the diagnosis by a doctor.

Data for RIDDOR are underreported for several reasons. Employers have no incentive to report, since to do so will often trigger a visit from the enforcement authority. Neither the patient nor the treating doctor may realise that a condition is work related, and they may be unaware of the need to inform the employer of the diagnosis.

The Health and Safety Commission, which collates and publishes these figures annually, commissioned a labour force survey in 1990. This survey estimated that only a third of reportable illness is actually reported and that 2.2 million cases of work related illness had occurred in the preceding year. A further survey is in progress, with broader data collection, and is to be published in 1997.

Voluntary reporting

Good data are vital if the extent of occupational disease is to be recognised and a strategy formed for prevention. Two successful voluntary schemes are the SWORD (surveillance of work related and occupational respiratory disease) and EPI-DERM (occupational skin disease) projects. Their data suggest a much higher burden of disease than other sources. From 1 January 1996 these schemes are combined within OPRA (occupational physicians reporting activity), which is also intended to collect data on musculoskeletal injuries, hearing loss, and any other serious illness, particularly neurological or psychological.

Compensation

There are essentially two systems with the potential to compensate an employee with occupational illness: the prescribed disease scheme or the civil courts. Success in one does not guarantee success in the other.

Prescribed diseases

Several well recognised occupational diseases are “prescribed” for benefit by the Department of Social Security under the industrial injuries scheme. Thirty nine prescribed diseases are listed in the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985. They fall into four categories, each denoted by a capital letter—those that are due to physical (A), biological (B), or chemical (C) agents or those of a miscellaneous nature (D).

The Industrial Injuries Advisory Committee advises on the addition of new prescribed diseases. Its criteria for prescription have traditionally been narrow—the disease must be a recognised risk to workers in a particular occupation and not a risk to the population in general. Also, the causal link between disease and exposure must be well established. Compensation depends on the degree of disability, as assessed by the local adjudication officer from the Department of Social Security. Medical evidence is submitted by an adjudicating medical authority, or special medical board in the case of respiratory disease. There are also separate arrangements for occupational deafness. The numbers of cases assessed under the scheme give further data on these diseases.

Civil claims

Civil law has developed to compensate one person for damage received through another's action or inaction. Most civil claims will be brought under the tort, or civil wrong, of negligence. That is, the employee will argue that the employer failed in his or her duty of care to safeguard the worker's health. In a civil court the plaintiff (employee) must show (a) that the defendant (employer) owed the worker a duty of care, (b) that the employer negligently breached that duty, and (c) that the employee suffered damage as a result of that breach.

The depth and breadth of the duty of care has been developed over the years by landmark cases. The concept of the “reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know” was clarified by Judge Swanwick in 1968. Exactly when an employer should be aware of a health risk in the workplace is inevitably contentious, particularly in relation to claims for occupational illness. Courts will often decide on a “date of knowledge,” after which no employer could reasonably claim ignorance. This date will often relate to government guidance or other influential advice.

Large damages may seem impressive when reported in the media, but the adversarial system as presently practised is not an entirely appropriate way of dealing with such cases. Some would argue that it is neither fair nor equitable. Furthermore, if state compensation has been paid for an industrial disease before the civil claim, this may be clawed back from awarded damages in excess of £2500. The Compensation Recovery Unit, established in 1990 for this purpose, had reclaimed a total of £281m by February 1995.

Lord Woolf, in his recent proposals for reform, has suggested a fast track system to speed up small claims. Alternatives such as the no fault compensation systems practised in other countries may have some advantages, but these have not found favour in Britain.

The expense of bringing an action, plus the liability for costs if unsuccessful, excludes many claimants who do not qualify for legal aid (and the criteria for qualification seem to be ever more limiting). From July 1995, solicitors have been able to enter into conditional fee agreements for certain classes of proceedings. If the plaintiff is unsuccessful the solicitor goes unpaid. If the plaintiff wins, the solicitor is paid a success fee, or uplift, in addition to his standard fee. The plaintiff may also insure against the cost of losing an action. These changes may open up litigation to claimants who would not previously have been able to take the financial risk.

Criminal law

Criminal law offers other sanctions to protect the health and safety of employees, though these avenues do not provide compensation for individuals. British criminal law arises from statute: acts of parliament, and regulations made thereunder, provide the “rules” by which employers are expected to abide. Case law, courts' decisions in specific cases, provides guidance on the interpretation of these rules. The judiciary also develops the common law by this means. Decisions made in higher courts are binding on lower courts.

The criminal law provides for offences against society as a whole and is primarily a punitive system. Cases must be proved beyond reasonable doubt, the normal standard in criminal law. No compensation may be granted to injured employees. Prosecution will often result in a fine for the employer: though most are modest, there is no upper limit for cases brought in the Crown Court. The largest fine levied under the Health and Safety at Work Act was £750 000 for an incident at BP's Grangemouth Refinery in 1988 which resulted in three fatalities.

When a fatal accident has occurred, the Crown Prosecution Service may also bring a case for manslaughter. Despite there having been 3369 work related deaths reported in the past 10 years, only three employers have been convicted of manslaughter. The law in this area is very confused, prompting the Law Commission to propose a new general offence under this heading. Corporate liability has been held only in small companies where the “directing mind” is easily identifiable as one person. In a large business like P & O, that may be impossible. At Zeebrugge on 6 March 1987, 188 people died when the ferry Herald of Free Enterprise capsized. Charges failed because no single senior individual was found sufficiently at fault. Private prosecutions were brought after 51 people died when the pleasure cruiser Marchioness sank in 1989 and after the explosion on the oil rig Alpha Piper that killed 167 people. In both cases the actions failed.

Effect of European Commission directives

The main statute regarding workplace health is the 1974 Health and Safety at Work Act. This is an umbrella statute giving general duties to provide, among others, a “safe place of work.” This act replaced a mass of detailed, prescriptive legislation that had been enacted over many years, each statute addressing a specific risk.

Recent health and safety law has been driven by the European Commission. This legislation may take the form of articles (of the Treaty of Rome), effectively the constitution of the European Community. Directives are adopted by the council of ministers, and Britain, as a member state, is obliged to implement them by a certain date. Domestic legislation is generally enacted to fulfil the requirements of the directives. Should the regulations fail to do this, there may be the possibility of an appeal to the European Court.

The “six pack” of health and safety regulations that came into force in January 1993 arose from this source. This included the display screen regulations and the manual handling regulations. Like all modern regulations, they are based on the principle of risk assessment—the employer is required to address the risk posed by a workplace activity and produce suitable steps to reduce any substantial risks to an acceptable level. Approved codes of practice accompany regulations to guide employers in these deliberations. Although they are not legally binding, they constitute good practice.

The 1974 Health and Safety at Work Act introduced both the Health and Safety Commission and the Health and Safety Executive (HSE), which have advisory and enforcement roles in industry. This includes the Employment Medical Advisory Service (EMAS), which employs doctors and nurses to advise both employers and employees on health and safety issues and appoints doctors to perform regular health surveillance as required by certain regulations (such as the Control of Lead at Work regulations).

The Health and Safety Executive has the power to enter and inspect workplaces. Inspectors may act informally, through advice, or issue improvement or prohibition notices. A prosecution may result in a fine. The average fine in the lower courts for health and safety offences was £2002 in 1994–5. Rarely, courts may order prison sentences for health and safety offences. A demolition job that failed to control the escape of asbestos resulted in a three month sentence for the owner of the company in January 1996. Two company directors received sentences of four months in April 1996 for failing to meet prohibition notices.

There is a considerable body of legislation, both European and domestic, which affects employment. Many of employees' rights are enshrined in the Employment Protection (Consolidation) Act 1978. Other primary and subordinate legislation relates to issues of discrimination, pay, and sick pay and are supported by various influential codes of practice such as those produced by the Advisory, Conciliation, and Arbitration Service (ACAS).

Dismissal

One of the most common problems arising in this area, which may involve occupational health physicians, is that of dismissal. Employees have a basic right under the act not to be unfairly dismissed (some groups do not enjoy this protection, such as self employed contractors). In general a qualifying period of two years employment is required before a complaint for unfair dismissal may be brought. Some types of unfair dismissal, notably certain grounds relating to health and safety, require no such period.

Dismissal occurs when the contract of employment is terminated by the employer, when a fixed term contract expires and is not renewed, or when an employee terminates the contract as a result of the employers' conduct. There are five potentially fair reasons for dismissal. The burden of proof lies with the employer to demonstrate a fair reason. An industrial tribunal will judge the circumstances of the case—including elements such as the size, resources, consistency of behaviour, and procedural correctness of the employer—in deciding reasonableness.

Employees who are absent from work for reasons attributed to ill health often involve an occupational health physician. In dealing with these cases, it is important to differentiate between two situations—that of long term absenteeism and the problem of persistent short term absence (or attendance). The first of these may give rise to fair dismissal on grounds of capability, which includes ill health and incompetence. The employer is expected to gather enough information to fully assess the situation and decide on a reasonable course of action. This will include a medical opinion. Confidentiality requires that the employer should not know details of the diagnosis but is entitled to ask:

• When might the employee recover?

• Will the employee be capable of returning to his former job?

• If not, what kind of restrictions upon capability are likely?

The physician giving an opinion must take steps to understand the requirements of the job and must have the employee's consent before assessing his or her medical condition for the purposes of the employer. Communication with others involved in clinical care, if appropriate, is also wise. The final decision on employment is a management rather than a medical decision, with the physician advising management in response to their questions. It is also important to appreciate that the cause of the ill health is irrelevant to the fairness of the dismissal; even if is likely that the current employment has caused the ill health.

The problem of persistent short term absence is approached very differently by tribunals. Employers may view this as an attendance issue and take a more disciplinary line in managing it. The genuineness of the illness is not relevant—an employer is entitled to expect a reasonable level of attendance and may ultimately fairly dismiss on the grounds of “some other substantial reason.” It is good practice (though not essential, depending on the case) to take medical advice as to whether there is any important underlying medical condition that may account for poor attendance. (If there is, the case might more properly be dealt with as a capability problem.) The situation was explained by the Employment Appeal Tribunal, which deals with appeals on matters of law arising from industrial tribunals, in the case of Lynock v Cereal Packaging.

A complaint of unfair dismissal is brought to an industrial tribunal within three months of the date of termination. The tribunal may order reinstatement (<2% of cases), re-engagement, or compensation (which is limited, the maximum basic award being £6150).

Confidentiality

The duty of confidentiality upon any doctor is relative rather than absolute, and the legal basis of this duty remains unclear. There are circumstances in which disclosure of confidential medical information may become necessary.

Particular difficulties may arise for occupational health physicians, because of their employment by the company they advise. The position is actually quite clear; the physician is bound by the codes of his or her profession, and the employer cannot insist on any contractual terms that would require the physician to breach those codes. To do so would generate a contract which would be void. The occupational health physician should safeguard the confidentiality of all undertakings with patients/employees and their records in the same way as any other doctor.

The photograph of the 19th century foundry was reproduced with permission of Hulton Deutsch, and the photograph of the Zeebrugge disaster was reproduced with permission of Rex Features.

Martyn J F Davidson is head of the medical service for the John Lewis Partnership, London.

The ABC of Work related disorders is edited by David Snashall, clinical director of Occupational Health Services, Guy's and St Thomas's Hospitals NHS Trust, London.