10. Occupational health, information and reporting

Changes and developments since last year

• A new safety inspection strategy announced by the DWP in 2011, Good Health: Good for Everyone, has resulted in a drastic cut in the number of proactive (unannounced) external workplace inspections. Sectors with some of the highest incidence of occupational ill-health, including teaching, health and social care and retail, are no longer eligible for unannounced workplace inspection unless the regulator is reacting to a concern that has already been drawn to its attention.

• The HSE telephone Infoline has now closed and there are no plans to replace it.

• The HSE has changed its RIDDOR reporting arrangements for injuries and accidents. In particular, it has increased the reporting threshold for workplace injuries from three to seven days.

• In November 2011, the Black/Frost review of Sickness Absence was published. The DWP has not yet responded to the review.

• The Löfstedt review Reclaiming health and safety for all, published in November 2011, made no recommendations on occupational health.

• NHS occupational health provision has been restructured and split into two divisions, one for NHS personnel and one covering NHS commercial occupational health services for businesses.

Recording and reporting accidents

Some incidents, where they are related to work, must be notified in writing to the relevant enforcing authority, either the Health and Safety Executive (HSE) or the local authority (see Chapter 2 on how to identify the correct enforcing authority for each sector).

The HSE publishes details of reported incidents, broken down by type of incident, geographical region and sector at: www.hse.gov.uk/statistics/

In September 2011, arrangements for reporting incidents to the HSE were changed. Telephone reporting is now only possible for accidents involving death or major injury (tel: 0845 300 9923). All other reporting must be done online. It is no longer possible to notify using fax or email. There are seven different online RIDDOR reporting forms covering different kinds of incident. Information on how to report can be found on the HSE website, Ways to make a report: www.hse.gov.uk/riddor/report.htm

What is reportable under RIDDOR?

Employers, the self-employed and anyone in control of work premises must report and record particular categories of work-related accidents and “near misses” under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).

On 6 April 2012, a new category of “over-seven-day” injuries replaced “over-three-day” injuries under the RIDDOR regulations. The change means that employers must now report an injury that causes a person to be off work (or unable to do the full range of their normal duties) for eight consecutive days or more, starting from the day after the injury was sustained. The consecutive period includes weekends and rest days.

In summary, incidents which must be notified under RIDDOR include:

• any fatality;

• major injuries;

• “over-seven-day injuries”;

• work-related diseases (which include, for example, occupational asthma, or occupational dermatitis); and

• near misses (also described in the RIDDOR Guidance as “dangerous occurrences”.)

According to the HSE, “stress” is not reportable as an occupational injury, even when accompanied by a medical certificate stating that it is work-related, because it does not relate to a single definable accident.

Injuries must be reported within 15 days (up from 10 days under the pre-April 2012 regime).

Details about the extent of the reporting obligation, including detailed guidance on what amounts to a “major injury”, a “work-related disease”, and a “near miss” or “dangerous occurrence”, can be found in new HSE guidance: A Guide to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2012 available at: www.hse.gov.uk/pubns/books/l73.htm

There is also a brief guide, Reporting accidents and incidents at work, available at: www.hse.gov.uk/pubns/indg453.htm, as well as an updated Information Sheet containing guidance on the reporting obligation for employers in health and social care at: www.hse.gov.uk/pubns/hsis1.pdf

Under Regulation 7 of RIDDOR, a record of all notifiable events must be kept for three years.

Employers remain obliged to record over-three-day injuries even though they are no longer obliged to report them and they should use this information to review their health and safety procedures.

Acceptable recording arrangements include using the accident book, keeping photocopies of completed forms for reporting purposes in a suitable file, or recording the details of each accident or reportable disease on a computer, as long as the details can be retrieved and printed out easily.

The accident book

Under the Social Security (Claims and Payments) Regulations 1987, employers of 10 or more people must record all accidents, however minor the injuries. The record, which is normally an accident book, should be kept in an accessible place and may be inspected by enforcing officers. Accident books should be kept for three years after the date of the last entry.

New rules governing the accident book came into force in 2004, following a ruling by the Information Commissioner who is responsible for the Data Protection Act 1998 (DPA 98). Most existing accident books allow personal details and information to be seen by anyone reading or making an entry in the book and so do not comply with the DPA 98. The HSE was given responsibility for producing the revised book. The unions challenged the HSE’s initial version, as it limited safety reps’ access to information on accidents. As a result, the HSE published a revised version of the accident book, containing a new introduction, pointing out that safety reps have a legal right to the information.

The HSE also amended the accident forms to include a tick-box indicating that the injured worker agrees to their personal information being given to the safety rep. If an individual does not agree to this, the employer must still give the rep the information, but should conceal the individual’s identity and details.

Up to date guidance on RIDDOR 2012 makes it clear that safety reps are entitled to see records created for the purposes of RIDDOR except to the extent that they reveal personal health information about individuals (see paragraph 94 of the updated guidance).

Some reps may still experience problems with the accident book at work because there is no legal requirement for employers to use the HSE version of the book. Only the headings under which information is collected are prescribed, not the manner in which it is recorded.

GMB “unofficial” accident book

The GMB general union launched an unofficial accident and near-miss report book in 2009. This is designed to help its safety reps get a picture of the key hazards in the workplace and take action. It launched the book after some safety reps complained that employers’ accident books have incomplete records, or experienced problems accessing records. The GMB book is not designed to replace employers’ accident book and the union is pushing employers to meet their legal duties to maintain an accident book. The book is available on the GMB website at: www.gmb.org.uk/pdf/2%20f72726e1-ac83-4a40-94f6-286e18374ae5_gmbaccidentreportbook.pdf

Accident investigation

There is no specific statutory duty on employers to investigate reportable work-related accidents, ill-health or “near misses”. HSE guidance sets out a step-by-step investigation process and includes worked examples and blank template forms for accident analysis. The four steps featured in the guidance are:

• gathering information;

• analysing information;

• identifying risk control measures; and

• developing and implementing an Action Plan.

The guidance emphasises the legal duty on employers to consult with safety reps following an incident.

The Safety Representatives and Safety Committees Regulations 1977 (see Chapter 3) give reps the right to carry out an inspection after there has been a notifiable accident or dangerous occurrence, or where a notifiable disease has been contracted. The regulations say reps can inspect where “reasonably practicable”, provided it is safe to do so and in the interests of the employees represented. The only acceptable reason for anything to be moved after an accident has occurred is to safeguard against further hazards and for rescue purposes. The regulations support reps’ rights to take witness statements following an accident.

Information on workers’ health

The Employment Practices Data Protection Code

In 2004, the Information Commissioner published Part 4 of the Employment Practices Data Protection Code, dealing with information about workers’ health. This is a Code of Practice and so is not legally binding (see Regulations, Approved Codes of Practice and guidance, Chapter 1). However, it provides clarification of the law and establishes standards which employers are expected to follow.

The Code says obtaining details of workers’ health is “intrusive”, adding: “Workers have legitimate expectations that they can keep their personal health information private and that employers will respect their privacy”.

Employers can only gather information about workers’ health if they can satisfy a “sensitive data condition”, for example, if they need the information to meet their obligations under health and safety law or to prevent discrimination, or if a worker has given their consent freely. The Code covers the following specific areas relating to workers’ health:

• sickness and injury records;

• occupational health schemes;

• information from medical examinations and testing;

• information from drug and alcohol testing; and

• information from genetic testing.

The Code restricts the scope of drug and alcohol testing at work and makes it clear that companies must not use genetic testing to predict workers’ future general health. Such testing may take place only where “a worker with a particular, detectable genetic condition is likely to pose a serious safety risk to others”, or where “it is known that a specific working environment or practice might pose specific risks to workers with particular genetic variations”.

Guidance accompanying the Code confirms the rights of safety reps, saying that they “have a legal right of access to information that they need to fulfil their functions”. Although an employer should not provide data identifying an individual worker without that worker’s consent, “the law does not prevent an employer from providing anonymised information to a safety representative”. Unions generally welcomed the Code, despite some concerns about drug testing.

In May 2010, the TUC issued guidance for safety reps on drug testing at work and called on the government to clarify the law in this area. It says clear guidance on drug-testing is needed to clear up the confusion around the legality of random or routine testing in jobs that are not safety critical.

Ban on pre-employment health checks

The Equality Act 2010 introduced a ban on pre-employment questions to job applicants about their health, including whether they have a disability, and about their previous sickness absence record, before they are offered a role. Once the offer has been made, a reference request asking about a candidate’s sickness record is, in theory, permissible, but employers are likely to be discouraged from engaging in this practice, given the increased litigation risk.

There are exceptions to the ban:

• asking an applicant whether s/he has a disability pre-interview for the purpose of organising any reasonable adjustments for the interview process is permissible;

• requesting information about disability for the purposes of diversity monitoring is allowed, although this information should not be available to the person carrying out the candidate selection;

• asking whether an applicant will be able to carry out a function intrinsic to the work (once reasonable adjustments have been put in place) is permitted;

• where having a particular disability is a requirement of the work (for example in the context of a supported employment scheme) establishing that the candidate qualifies for the scheme is allowed; and

• health questions are allowed in the context of national security vetting.

This prohibition can only be enforced by the Equality and Human Rights Commission. Even so, it is a helpful development for workers, as it should strongly discourage employers from asking inappropriate questions about a candidate’s previous health record.

Information on work-related deaths

In April 2009, the HSE announced that it would publish some details of work-related deaths on a monthly basis through the chief executive’s report to the HSE Board. It said that “the names of the deceased and additional details on these fatal incidents” would be available on the HSE’s Freedom of Information web pages. The announcement followed a ruling by the Information Commissioner. However, the HSE refused to make a complete disclosure of information. HSE operational guidance states that: “Details of the victim’s employer and/or who had control of the site at the time of death should be provided only when the relevant area inspector has confirmed that this information does not form part of the investigation.” The HSE also excludes investigations into workplace deaths led by the police, including workplace manslaughter cases.

Hilda Palmer of the Hazards campaign has compiled the following approximate estimates of the number of individuals killed by work-related illness and injury each year:

Estimate of deaths by work-related illness

• 18,000 deaths from work-related cancer, estimated at 12% of all cancers (range 8-16%) due to work, including at least 5,000 deaths from asbestos related cancers;

• up to 20,000 deaths from heart disease – 20% of deaths work-related due to dust, stress, long hours and shift work;

• approximately 6,000 deaths from respiratory illness – 15-20% of obstructive lung disease is work-related;

• approximately 6,000 deaths from other work-related diseases, for example neurological diseases

This gives a total of up to 50,000 deaths from occupational disease each year. The TUC uses a minimum estimate of 20,000 deaths.

Estimate of deaths from work-related injury

The Hazards Campaign estimates that nationally during 2010-11, between 1,168 and 1,318 people were killed in work-related incidents, including:

• 171 workers whose deaths were reported to the HSE and local authority under RIDDOR;

• 68 members of the public killed by work activity;

• 31 workers killed at sea and (estimated) 20 in the air;

• Approximately 778 killed in work-related road traffic accidents;

• 100-250 suicides due to pressure of work (suicides are up 10% on 2009-10).

Source: Presentation to the IER Conference: Reviewing Löfstedt: What now for health and safety at work, May 2012.

First aid

Employers are obliged by law to provide first aid facilities under the Health and Safety (First Aid) Regulations 1981 (First Aid Regulations).

New first aid training and approval arrangements came into force on 1 October 2009. The mandatory four-day training course was reduced to three days and there is also now a one-day option for small businesses. All qualified first aiders still have to attend a two-day requalification course every three years. The new guidance also suggests that refresher training taken annually would be beneficial to first aiders and their employers. The new guidance is available at: www.hse.gov.uk/firstaid.

The regulations put the following duties on employers:

• to provide adequate and appropriate first aid equipment and facilities;

• to provide an adequate number of trained and qualified first aiders. These are people who have been trained and received certificates to show they are capable of administering first aid;

• to provide an “appointed person” if the first aider is absent; and

• to provide an appointed person instead of a first aider in some smaller, low-risk workplaces. This person will provide information to all workers about the provision of first aid, location of equipment, facilities and personnel.

Employers must determine their own first aid needs. Assessments need not be recorded, but employers may have to justify decisions about the level of provision. The HSE guidance says that employers should consider:

• workplace hazards and risks;

• the size of the organisation;

• the organisation’s accident history;

• the nature and distribution of the workforce;

• the site’s remoteness from emergency medical services;

• the needs of travelling, remote and lone workers;

• employees working on shared or multi-occupied sites; and

• annual leave and other absences of first aiders and appointed persons.

If the assessment identifies a comparatively low risk to health and safety, employers may only need to provide a “clearly identified and suitably stocked” first aid container and an appointed person to look after first aid arrangements and take charge in emergencies.

If the risks are greater, employers may need to provide a sufficient number of first aiders to ensure someone is always available to give first aid immediately, train first aiders in specific procedures, inform local emergency services, in writing, of the sites where hazardous substances or processes are in use and provide first aid rooms.

The Approved Code of Practice (ACOP) to the First Aid Regulations states that employers have to provide suitable first aid materials, equipment and facilities. Every workplace must have at least one first aid box, and the box should be accessible at all times when employees are present.

The guidance lists a minimum stock of first aid items. The list is not mandatory, and “equivalent but different” items will be considered acceptable.

An HSE leaflet, Basic advice on first aid at work, should be included in the first aid container. It is available in both leaflet and poster formats, in line with the latest recommendations on first aid practice from the Resuscitation Council (UK).

A first aid room is usually necessary in high-risk establishments such as those in shipbuilding, the chemicals industry and large construction sites. It should contain essential first aid equipment. A designated person should have responsibility for the room. Employers are required to make a first aid room easily accessible to stretchers and to any other equipment needed to convey patients to and from the room. The first-aid room should be sign-posted and the signs should comply with the Health and Safety (Safety Signs and Signals) Regulations 1996 (SI 1996 No. 341).

Employers must provide information to employees about the provision of first aid, location of equipment, facilities and personnel. This should take into account people with language or reading difficulties. Employers should give new employees this information as part of their induction training and provide at least one notice in each workplace giving locations of facilities and equipment, and names and locations of first aiders.

The ACOP to the First Aid Regulations states that, if the assessment identifies a need for first aiders, employers should ensure that they are provided in “sufficient numbers at appropriate locations”. Where there are 50 or more employees, at least one such person should be provided “unless the assessment justifies otherwise”.

The HSE guidance suggests the following numbers of first aiders:

• Lower-risk workplaces (i.e. shops, offices, libraries), at least one appointed person where fewer than 50 people are employed; at least one first aider where there are between 50 and 100 people; and, over this, one additional first aider for every 100 employees.

• Medium-risk workplaces (i.e. light engineering, food processing, warehousing and assembly work): at least one appointed person where fewer than 20 people are employed; at least one first aider for every 50 where the workforce is between 20 and 100; and over this, there should be one additional first aider for every 100 employees.

• Higher-risk workplaces (i.e. construction, slaughter houses, chemical manufacturing or where much of the work involves dangerous machinery or sharp instruments): at least one appointed person where fewer than five people are employed; at least one first aider for between five and 50 employees, one additional first aider for every 50 people employed above this and at least one first aider trained in specific emergency action where there are hazards for which additional first aid skills are required.

Löfstedt review and first aid regulation

The Löfstedt review has recommended removing the current statutory requirement for HSE to approve first aid training providers under the Health and Safety (First Aid) Regulations 1981.

Occupational health

An occupational health scheme is a service which gives access to a range of professional advice and services to staff.

The European Union’s Framework Directive (EEC/89/391) requires that all workers have access to preventive occupational health services. However, the way this duty has been transposed into UK law means that in practice, only a small minority of workers have access to comprehensive occupational health support at work. According to the British Medical Association, the fact that only 13% of workers have access to an occupational physician is the key missing link that undermines the UK’s aspirations to reduce sickness absence and have a healthier workforce.

In 2010, a standards and accreditation scheme was launched for occupational health services. The government’s public health strategy for England is that all employers should be encouraged to contract only with fully accredited services.

NHS Occupational health services

As well as private occupational health providers, employers can access NHS occupational health services. Web-based advice and details of the occupational health services available to businesses via the NHS can be found at the NHS Health for Work website at: www.health4work.nhs.uk/. An NHS Health for Work advice line is also available on 0800 077 8844. It is primarily aimed at small businesses.

As the largest employer in the UK, the NHS now has its own network of occupational health teams called NHS at Work providing occupational health support for NHS employees. It can be accessed at: www.nhshealthatwork.co.uk/

Fit notes

The “Statement of Fitness for Work” or “Fit Note” was introduced in April 2010. The Fit Note is stored electronically by the GP, but as with the old certification system, a hard copy is handed to the employer by the worker and is used to prove entitlement to sick pay. The Fit Note allows the GP, in collaboration with the patient, to suggest a return to work based on one of four possible options:

• a phased return to work;

• altered hours;

• amended duties; and

• workplace adaptations.

There is no “Fit for Work” option. This is because, as was previously the case, where a worker is fully fit for work, the GP will simply not issue a new certificate. A GP should only recommend a return to work for a person who is not fully recovered after discussing it with the patient and making sure s/he is fully aware of what is being suggested.

In many cases, employers need expert advice in order to implement suggestions made by the GP, and union reps have a role in making sure that the employer always seeks professional support before introducing any adaptations. An employer is not obliged to accept the advice on a Fit Note, but if the employer decides not to follow the advice, the Fit Note must be treated as if the GP has advised that the employee is “not fit for work”. Government advice states clearly that “unless the employer implements the advice on the medical certificate, the worker is not fit to return and should continue to be paid his or her sick pay entitlement.”

In practice, problems are likely if the employer either fails to take the steps promised, or fails to carry them through adequately. An employee in this position should seek help from his or her union rep, and would normally use the grievance procedure.

The employer should carry out a revised risk assessment of any changes or adaptations needed to implement the recommendations on the Fit Note, to avoid introducing new risks.

The Fit Note procedure does not change the employer’s overriding statutory duty to make reasonable adjustments for a disabled employee, regardless of what the GP recommends.

Returning to work following long-term sickness absence

The HSE has published guidance for safety and other trade union representatives offering practical advice on long-term sickness absence and return to work issues.

The guide outlines six key actions that union representatives can take to reduce sickness absence and help sick employees to successfully return to work.

These include:

• helping to identify measures to improve worker health;

• suggesting the development of workplace policies for managing sickness absence;

• helping keep workers who are off sick in contact with work;

• helping plan adjustments to enable a return to work;

• supporting and empowering sick workers to return to work; and

• helping promote understanding of ill-health and disability at work.

The TUC issued guidance on medical referrals, Rehabilitation, a short guide to the evidence, available on its website, after reps reported confusion among employers about the roles of different medical practitioners.