In the first case of its kind, the Health and Safety Executive (HSE) has taken formal enforcement action against an occupational health provider following serious failings in the delivery of health surveillance services. Historically, HSE has focused enforcement on employers rather than the occupational health providers they engage. We consider what this ‘change in approach’ may signal to both occupational health providers and employers.
HSE inspectors issued both a Prohibition Notice and an Improvement Notice against the occupational health provider, personally, rather than against the company, as she was operating as a sole trader without a limited liability company. The notices were issued after HSE found that health surveillance was being carried out by personnel who were:
- inadequately trained,
- not suitably qualified, and
- insufficiently supervised.
As a result, the HSE deemed the health surveillance programme being provided to be ineffective, risking early indicators of occupational disease being missed. HSE highlighted potential failures in the ability to detect:
- occupational asthma,
- occupational dermatitis, and
- noise-induced hearing loss.
The workers affected were reportedly exposed to hazards including wood dust and noise, meaning that failures in surveillance could have allowed significant ill-health risks to continue without intervention.
Of particular note, is that the terms of the Prohibition Notice issued prevented the provider from continuing to provide the health surveillance services, without obtaining further qualification and training of personnel. This is an extremely unusual move by the HSE which, historically, would only take such action - prohibiting a business from continuing its operations in the most extreme cases.
The Improvement Notice separately addressed HSE’s concerns regarding clinical governance, quality assurance and escalation procedures within the occupational health provider’s business. We understand that neither notice is being appealed.
HSE occupational health inspector commented that:
“We expect OH providers to demonstrate genuine competence, proper clinical governance, and clear processes for acting on what they find. Anything less is a failure of the workers these services are meant to protect.”
Historically, regulatory attention has tended to focus on the employing organisation as the relevant duty holder. The legal obligation to protect employees’ health and safety rests with the employer, while the decisions, actions and advice of an external occupational health provider have not generally attracted the same direct scrutiny, although occupational health providers are still subject to legal duties in respect of the services they provide.
This case therefore marks an interesting development in the HSE’s approach, demonstrating that those engaged to support employers in meeting their health and safety obligations may themselves face enforcement action where the services they provide are inadequate.
What this may mean for employers
Employers should not assume that in engaging an Occupational Health provider it has satisfied its legal duties. Engaging competent occupational health advice and support is one way in which an employer may comply with various statutory duties. However, those duties are non-delegable, meaning that whilst the provider may undertake certain actions for or on behalf of the employer, the employer retains ultimate responsibility.
HSE will still expect employers to be able to demonstrate that they have taken reasonable steps to engage competent occupational health advice and support. This is likely to involve suitable due diligence on the provider and an appropriate procurement process to ensure the adequate qualification, experience and resources are available within the provider to adequately service the employer’s workforce.
Occupational health providers can offer valuable specialist support, but employers must remain actively engaged and consider whether the advice received is consistent with their workplace risks and legal duties.
If you would like to discuss your organisation’s occupational health and health surveillance arrangements, please contact a member of the Brodies Health & Safety team.
Contributors
Senior Associate
Partner & Solicitor Advocate
Solicitor
