Question: Do employees have to attend when we have arranged health surveillance with an occupational health provider?
Answer: All employees have the general duty prescribed in s7 of the Health & Safety at Work etc Act 1974 that they shall cooperate with the employer in order to enable the employer to comply with all their statutory duties. The employer also has clear duties, and must provide safe systems of work and safe plant, reduce risks so far as is reasonably practicable and provide adequate information, instruction, training and supervision.
With regard to health surveillance, the employer also has a duty to provide all the information and instructions necessary for the employees. Applying the general hierarchy of control associated with the Control of Substances Hazardous to Health (COSHH), and the principles of prevention detailed in the Management of Health & Safety at Work Regulations, an employer should engineer safety into processes that minimise the likelihood of exposure to hazards.
However, surveillance is still a practical tool, and is deemed necessary in the Management Regulations when there is: an identifiable disease or adverse health condition; a valid detection technique; or, likelihood that a disease or condition could occur at work; and, that the surveillance will further protect the employee.
When a process change is going to necessitate health surveillance, the employer should consult or discuss this with employees. Such an exchange of information will provide an opportunity to explain the need for surveillance, the type of surveillance, its arrangements, and reassure employees that confidentiality will be maintained at all times. All data protection considerations should be met, and it should also be made clear that any clinical information will only be held by the occupational-health provider.
It is possible that an individual employee may have a reasonable objection to health surveillance due to a particular phobia or religious belief, and due consideration should be given to this. However, unless there are genuine objections, all employees must fulfil their general duty to cooperate with the employer during the surveillance programme.
There are other specific legislative reasons for surveillance, namely:
• Control of Substances Hazardous to Health Regulations (COSHH);
• Control of Vibration at Work Regulations;
• Control of Noise at Work Regulations; and
• Control of Lead at Work Regulations.
These regulations are more explicit in that they place a specific duty on employees to comply and attend any surveillance deemed necessary.
For example, Regulation 11 of COSHH states: “An employee to whom this regulation applies shall, when required by his employer and at the cost of the employer, present himself during his working hours for such health surveillance procedures as may be required.”
This statement is mirrored in the other three sets of regulations. For an employee to fail to attend or refuse without a specific reason would warrant the involvement of the human resources team.
DISCLAIMER
Every care is taken in the preparation of these questions and answers, which are supplied by Croner Consulting, a trading division of WoltersKluwer(UK) Ltd. Any advice or guidance contained herein is not to be taken as the official advice or guidance of IOSH or SHP/UBM. The information is correct at the time the answer was formulated and posted. However, the answers given can only address the general principles involved. Professional advice must be sought on any specific query or problem your business has relating to any issue or area raised.
