An action must normally be brought within 3yrs of the damage. Therefore it is important to advise an individual when an occupational disease is diagnosed , and to make a written record of this advice in the medical records. Where the claimant is unaware of the damage (as where an illness has a long latency period), he/she has 3yrs fro m the date he/she discovers the illness or ought reasonably to have discovered it In the \201 eld of industrial injury or disease the claimant usually alleges negligence by the employer Negligence is de \201 ned as a failure to take reasonable care to prevent foreseeable harm Employees often also sue their employer for breach of statutory duty \200 Most of the sta tutory regulations, like the COSHH Regulations 2002 and the Manual Handling at Work Regulat ions 1992, give rise to a civil action for breach of statutory duty, as well as the possibi lity of a criminal prosecution Since the numbers of prosecutions brought by the enforcing authorities are relatively few, a civil action is a more likely sanction for breach of heal th and safety laws The Health and Safety at Work Act 1974 does not give rise to a civil action. It lays down a framework for the criminal law of health and safety at work. The common law of negligence already provides a civil action for damages for negligence Damages are awarded for loss of earnings, and also for pain and suffering and loss of amenity The employer is vicariously liable for the wrongdoing of its employees in the course of employment The Employers \200\231 Liability (Compulsory Insurance) Act 1969 imposes an obligation on employers to take out insurance against a claim by an employee for an indu strial injury. Relevant legislation \200 Social Security (Industrial Injuries)(Prescribed Diseases) Regu lations 1985, as amended Social Security Act 1998. Further information Kloss D (2005). Occupational Health Law , 5 th edn, Chapter 7. Wiley-Bl ackwell, Oxford. DWP. Available at: M http://www.dwp.gov.uk for information about welfare b ene \201 ts. 26_Smedley_Chap26.indd 561 1/2/2013 12:41:47 PM CHAPTER 26 Employment law 562 Equality Act 2010 The protected characteristics \200 This Act, most of which came into fo rce in England and Wales and Scotland on 1 October 2010, repeals previous legislation dealing with discrimination, inclu ding: \200 the Sex Discrimination Act 1975 \200 the Race Relations Act 1976 \200 the Disability Discrimination Act 1995 and \200 the Employment Equality (Age) Regulations 200 6 The law is based on EU directives. It covers discrimination in employment, education, transportation, and the provision of goods, facilities, and services . It brings together all the anti-discrimination legislation into one comprehensive statute The Equality and Human Rights Commission oversees and polices the Act The employment provisions are enforced through employment tribunals A claim of unlawful discrimination must be commenced in an employment tribunal within 3mths of the act complained of or, where there are a series of c omplaints, within 3mths of the last incident \200 The Equality Act does not apply to Nort hern Ireland where the old legislation is, for the time being, still in force. Characteristics protected by the Act The following are characteristics protected by the Act : \200 Age \200 Disability \200 Gender reassignment \200 Marriage and civil partner ship \200 Pregnancy and maternity \200 Race \200 Religion or belief \200 Sex \200 Sexual orientation. 26_Smedley_Chap26.indd 562 1/2/2013 12:41:47 PM This page intentionally left blank CHAPTER 26 Employment law 564 Disability discrimination 1: the de \201 nition of disability A disabled person is one wit h a physical or mental impairment that has a substantial and long-term adverse effect on hi s/her ability to carry out nor- mal day-to-day activities. These activities may be carried out in employ- ment or outside employment, but must be activities common to many jobs, such as reading, writing, walking, and climbing stairs, not those special to a particular job, such as assembling a watch or playing a violin in an orchestra. \200 Physical impairment includes sensory impairments such as those affecting sight or hearing Mental impairment includes learning dif \201 culties and any mental disorder. Since 2005 it is unnecessary to show that a mental illness is clinically well rec ognized A substantial adverse effect is one that is more than minor or trivial \200 Long term mea ns having lasted for 12mths or more, likely to last for 12mths or more, or terminal The Equality Act removes the need to prove impairment of one of a list of capacities, for e xample mobility, manual dexterity or memory. It is now ultimately for the employment tribun al to decide what is a normal day-to-day activity Pain and fatigue must be taken into account, and the fact that disabled people develop copi ng mechanisms to avoid tasks they \201 nd dif \201 cult \200 Where a condition would b e disabling if not controlled by drugs (e.g. epilepsy, diabetes) or assisted by prosthesis or other aid (e.g. hearing aid, counseling), it counts as a disability under the Act. Only exception to this is defective eyesight assisted by spectacles or contact lenses \200 A s evere dis \201 gurement is treated as a disability (unless self-in \202 icted), even thou gh it does not interfere with normal day to day activities \200 Cancer, HIV, and multiple sclerosis are disabilities from diagnosis \200 Other progressive conditions, e.g. muscul ar dystrophy, are disabilities from when the impairment has some effect on the ability to c arry out normal day-to-day activities, even though not yet substantial Recurrent disabling conditions, e.g. rheumatoid arthritis, are disabilities despite periods of remission if a substantial adverse effect is likely to recur Where a person has suffered from a substantial and long-term disabling condition in the past and has now recovered, he/she will be protected by the Act if discriminated against because of the past disability. This is particularly important to those who have had a mental illness The Equality Act 2010 (Disability) Regulations 2011 provide that a person is disabled if ce rti \201 ed as blind, severely sight impaired, sight impaired or partially sighted by a co nsultant ophthalmologist \200 These regulations also provide that certain conditions are to be treated as not amounting to impairments, i.e. \200 a tendency to set \201 res \200 a tendency to steal 26_Smedley_Chap26.indd 564 1/2/2013 12:41:47 PM DISABILITY DISCRIMINATION 1: THE DEFINITION OF DISABILITY 565 a tendency to physical or sexual abuse of other persons \200 exhibitionism, and \200 vo yeurism Seasonal allergic rhinitis is to be treated as not amounting to an impairment unless it agg ravates the effect of another condition Addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment unless originally the result of administration of medical ly prescribed drugs or other medical treatment Where addiction causes a disabling medical condition, e.g. alcoholism and liver cirrhosis, the consequent impairment is a potential disability under the Act. Occupational health reports \200 A medical report on a worker should not state de \201 n itively that he/she is disabled, since that is a legal question for an employment tribunal. However, it is acceptable for a doctor to state that in his/her opinion it is likely or un likely that the worker quali \201 es as disabled, without making a de \201 nite ruling If it is appropriate, a report should set out whether there is an impairment, the effect on normal day-to-day activities, and how long it is likely to last It may also recommend adjustments to the working environment or working practices that coul d enable to worker to do the job, despite the disability. The latter is good employment pra ctice even when there is doubt about whether the worker is disabled, and this is supported by the Equality and Human Rights Commission \200\231s Code of Practice on Employment 2011 In order to be legally defensible, occupational health reports must be written by a suitabl y quali \201 ed expert, based on evidence, and must be logical and reasoned. Suitable expe rtise would include being an accredited specialist in occupational medicine. 1 Further information Guidance on Matters to be Taken into Account in Determining Questions R elating to the De \201 nition of Disability (2011). Kloss D (2010). Occupational Health Law , 5th edn, Chapter 9. Wiley-Blackwell, Oxford. 1 Jones v Post Of \201 ce [2001] EWCA Civ 558, [2001] IRLR 384, Court of Appeal. 26_Smedley_Chap26.indd 565 1/2/2013 12:41:47 PM CHAPTER 26 Employment law 566 Disability discrimination 2: employers \200\231 duties The disability provisions of the Equ ality Act apply to all employers, except for the armed forces. They apply to job applicants , employees, self-employed, contract workers, and of \201 ce-holders, but not to volun- te ers. A complaint of unlawful disability discrimination must be made to an employment tribun al within 3mths (of the act or the last incident). Direct discrimination \200 This is treating someone less favorably because of the fact of the disability \200\224a \200\230blanket ban \200\231, e.g. \200\230job is not open to those with epilepsy \200\231 Direct discrimination is unlawful and cannot be justi \201 ed. Each job applicant or employee must be treated as an individual Direct discrimination against a non-disabled person because of association with a disabled person is unlawful, e.g. mother of a disabled child rejected be cause of fear she will take time off to care for her child. Pre-employment screening \200 Employers must not normally ask health questions, including questions about sickness absence, before offering a job applicant work However, an offer of work can be made conditional on satisfactory health clearance and health questions can then be asked The employer is allowed to ask an applicant, before offering work: if s/he needs adjustments to the selection process, e.g. an interview \200 questions abou t functions intrinsic to the job, e.g. eyesight Health questionnaires should be drafted, processed, and interpreted by health professionals and stored as con \201 dential medical records. Nothing in the pre-employment health ques tionnaire should be disclosed to the manager without the consent of the worker, or a court order. Such information should only be disclosed to managers in as far as this is necessary for them to undertake their management responsibilities. Disability-related discrimination \200 This is treating someone unfavorably because of so mething that arises in consequence of his/her disability, e.g. rejecting a wheelchair user for a job as a \201 re \201 ghter. This discrimination is justi \201 able if the employ er can prove it is a proportionate means of achieving a legitimate aim \200 Employers sho uld consider reasonable adjustments before rejecting someone for a disability-related reason, e.g. dismissal for unacceptable sickness absence w ithout considering adjustments to the attendance management procedure may be discrimination . However, employers are not obliged to continue to employ a disabled employee whose attend ance has been seriously unsatisfactory for a long period. 26_Smedley_Chap26.indd 566 1/2/2013 12:41:47 PM DISABILITY DISCRIMINATION 2: EMPLOYERS \200\231 DUTIES 567 An employer may be able to justify discrimination on health and safety grounds, but only if it is proportionate to the risk. Decisions must be based on a risk assessment and reasonab le adjustments must be made Employers must not exclude a disabled person if there is no explicit statutory prohibition and no clear evidence that the risk to the disabled person is substantially greater than to the non-disabled employee, or employment would create a signi \201 cant hazard to others. The duty to make reasonable adjustments \200 There is a duty to consider adjustments to t he working environment and practices, and the provision of auxiliary aids (including servic es) There is a duty to consider adjustments to recruitment \200 The duty only arises when the employer either knows or ought to know of the disability The employer only has to do what is reasonable. Reasonableness depends on practicability an d cost. The extent of an employer \200\231s resources, the nature of its activities, and th e size of the undertaking are relevant. Financial assistance through the Access to Work sch eme, or sponsorship by a charity or local authority, must also be explored \200 The emplo yer must not seek payment from a disabled employee for the costs of complying with the duty of reasonable adjustment \200 Examples are given in the Code of Practice on Employment 2011: making adjustments to premises \200 providing information in accessible formats \200 al locating some of the disabled person \200\231s duties to another worker \200 transferring the disabled person to \201 ll an existing vacancy \200 altering hours of work or trai ning \200 assigning to a different place of work or training, or home working \200 allo wing the disabled person to be absent during working or training hours for rehabilitation, assessment, or treatment providing training/mentoring for disabled person or other worker \200 acquiring or modify ing equipment \200 modifying procedures for testing or assessment \200 providing a read er or interpreter \200 providing supervision or other support \200 allowing a disabled worker to take a period of disability leave \200 participating in supported employment sc hemes, such as Workstep (see b p. 410, Rehabilitation and disability services) \200 employing a support worker to assist a disabled worker \200 modifying disciplinary or grievance procedures \200 adju sting redundancy selection criteria \200 modifying performance-related pay arrangements Reasonable adjustments include moving a disabled employee to a higher grade job (if s/he ha s the necessary quali \201 cations), or to a lower-paid job (if that is all that is availa ble within his/her competence) 26_Smedley_Chap26.indd 567 1/2/2013 12:41:47 PM CHAPTER 26 Employment law 568 In general, a disabled employee is not entitled to a longer period of sick pay than the non -disabled. However, the Court of Appeal has held that, where an employer is at fault in not making a reasonable adjustment, they must pay full pay throughout a resulting period of ab sence Disability-related leave, e.g. to attend physiotherapy or counseling, is not sick leave and should be recorded separately Failure to make adjustments deemed reasonable by an Employment tribunal (EmT) cannot be justi \201 ed. Relevant legislation and further information \200 Equality Act 2010 (Disability) Regulati ons 2010. \200 Equality and Human Rights Commission (2011). CoP on Employment. \200 Klo ss D (2010). Occupational Health Law , 5th edn, Chapter 9. Wiley- Blackwell, Oxford. 26_Smedley_Chap26.indd 568 1/2/2013 12:41:47 PM This page intentionally left blank CHAPTER 26 Employment law 570 Sex discrimination It is unlawful to treat a person of one sex less favorably than someone of the opposite sex because of their gender. Stereotypical assumptions should not be made a bout women being weaker and more vulnerable than men. Each person should be treated as an i ndividual. Indirect discrimination \200 Indirect discrimination is treating a member of one sex unfa vorably because of a provision, criterion or practice which puts members of one sex at a di sadvantage, e.g. a requirement to work shifts or to work away from home Indirect discrimination can be justi \201 ed if the employer has used a proportionate means of achieving a legitimate aim, e.g. the needs of his/her business requi re these methods of working. Sexual harassment Sexual harassment is a form of sex discrimination. It is unwanted conduct either of a sexual nature or on the grounds of sex that has the purpose or effect of viola ting the employee \200\231s dignity, or creating an intimidating, hostile, degrading, humil iating, or offensive environment. If not done with that intention it is to be regarded as h aving such an effect only if it should reasonably be considered as doing so. Pregnancy discrimination \200 The Equality Act 2010 provides that it is unlawful to treat a woman unfavorably in the protected period because she is pregnant or because of illness suffered by her as a result of it or because she takes statutory maternity leave The protected period begins when the pregnancy begins and ends at the end of her statutory maternity leave or, if earlier, when she returns to work after the pregnancy. If she does n ot have the right to maternity leave it ends 2wks after the end of the pregnancy After the end of the protected period, the employer is entitled to treat any sickness absence of the woman in the same way as he would treat that of a man, ev en though it may be pregnancy or maternity related Nothing shall render unlawful any act done in relation to a woman if it is necessary to pro tect women as regards pregnancy or maternity, e.g. work with lead or ionizing radiations, o r work on a ship or aircraft \200 Pregnant employees are entitled to reasonable time off work with pay to attend antenatal care recommended by a doctor, midwife, or health visitor (Employment Rights Act 1996) Where a job is hazardous for a pregnant employee or one who has recently given birth, the e mployer must not dismiss her. Either a suitable alternative must be found or she must be se nt home on full pay If a doctor or midwife has certi \201 ed that night work is hazardous, the employer must e ither offer her suitable day work or suspend her on full pay 26_Smedley_Chap26.indd 570 1/2/2013 12:41:47 PM SEX DISCRIMINATION 571 Under the Management Regulations 1999 an employer must carry out a risk assessment of the s peci \201 c risks posed to the health and safety of pregnant women or new mothers when emp loying any woman of childbearing potential. Further risk assessment should be performed whe n a female employee informs the employer she is pregnant, and update as necessary. Failure to do so is unlawful sex discrimination The main hazards are: physical agents (e.g. shocks, vibrations, handling of loads, noise, non-ionizing radiation, extremes of heat and cold) chemical agents (e.g. mercury, lead, antimitotic drugs, CO) \200 biological agents (e.g. listeria, rubella, chickenpox, toxoplasma, cytomegalovirus, hepatitis B, and HIV) working conditions (e.g. mining) If the woman informs her employer after her return to work that she is breastfeeding, a risk assessment should be done Employers have a duty to provide suitable workplace rest facilities for women at work who are breastfeeding There is no statutory right for workers to take time off to breastfeed, but an employer who unreasonably refuses to allow a woman to express milk or to adjust her working conditions to allow her to continue to breastfeed may be liable for unlawful sex discrimination A woman must not be at work within 2wks of giving birth from 1 April 2007 she has the right to up to 52wks maternity leave \200 statutory materni ty pay is payable for up to 39wks. Gender reassignment \200 Discrimination against a person who is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassignin g sex by changing physiological attributes, or who is living as a member of the opposite se x without undergoing medical treatment, is unlawful under the Equality Act 2010 Absence from work to undergo gender reassignment must be treated in the same way as absence due to sickness or injury, and the employer must not tre at a transsexual \200\231s absence less favorably than that of other workers if it is unrea sonable to do so, e.g. the transsexual asks to take a day \200\231s holiday to attend couns eling and the employer refuses without good reason There is an exception where the job involves the holder of the job being liable to be calle d upon to perform intimate physical searches pursuant to statutory powers. However, under t he Gender Recognition Act 2004 a person who has successfully undergone gender reassignment can register his/her acquired gender and thereafter is entitled to be regarded for all purp oses as possessing that gender. Relevant legislation \200 Equality Act 2010 \200 Workplace (Health, Safety and Welfare) Regulations 1992 \200 Management of Health and Safety at Work Regulations 1999 \200 Em ployment Rights Act 1996 \200 Gender Recognition Act 2004. 26_Smedley_Chap26.indd 571 1/2/2013 12:41:47 PM CHAPTER 26 Employment law 572 Age discrimination \200 Discrimination against employees because of their age is unlawful under the Equality Act 2010 unless the employer can justify it as a proportionate means of achieving a legitimate aim. This applies to both direct and indirect discrimination, and t o both young and old Employers are permitted to ask for training and experience where it can be shown that this is a genuine requirement for the job, and to refuse to give training where the employer wil l be unlikely to work for long enough to justify the expenditure on training In 2011 the employers \200\231 right to force employees to retire at 65 was repealed. Employers now have to justify forcing an employee to retire at any age. However, the Supreme Court decided in 2012 that a policy that speci \201 es a compulsory age of ret irement can be defended if it is reasonably necessary to assist workforce planning, or to p reserve the dignity of older workers There is no age limit for unfair dismissal and redundancy rights \200 Case law from the E uropean Court of Justice has held that assumptions based on statistical averages showing that older workers are likely to be less physically and intellectually competent than younger workers can justify the imposition of age restrictions on recruitment and retirement Employers are justi \201 ed in imposing \201 tness testing on older workers, where \201 tness is a necessary job requirement. Young workers \200 Employers are under a special duty to protect young workers \200 No person under 13 may lawfully be employed in any capacity and from 13 \200\22316-yrs-old only outside school hours and not for more than 2h a day, except for approved work experience for children in their last year of school The employer must conduct a risk assessment of a young person under 18yrs old before he/she starts work and has a duty to take into account inexperience, lack of awareness of risk, and immaturity Young persons must not be employed on work which is: beyond their physical or psychological capacity \200 involves harmful exposure to agents which are toxic \200 carcinogenic, cause heritable genetic damage or harm to the unborn child, or in any other way chronically affect human health involves harmful exposure to radiation \200 involves a risk of accidents which it may rea sonably be assumed cannot be recognized or avoided by young person \200\231s owing to their insuf \201 cient attention to safety or lack of experience or training \200 or presents a risk from extrem e cold or heat, noise, or vibration. Relevant legislation \200 Equality Act 2010 \200 Management of Health and Safety at Wor k Regulations 1999. 26_Smedley_Chap26.indd 572 1/2/2013 12:41:47 PM This page intentionally left blank CHAPTER 26 Employment law 574 Working Time Regulations 1998 These provisions are very complex, and only a general account is given, with only a few of the many amendments being considered in this section. Issues around working time inevitably link in with shift working and related health issues. Main provisions and de \201 nitions \200 The regulations impose a limit on working hours , including overtime, of an average of 48h for each 7 days, taken over a period of 17wks, but there are many exce ptions. Doctors in training were included from 1 August 2004. They were restricted to 58h u ntil 31 July 2007, and 56h until 31 July 2009. The 48h limit now applies Working hours include hours when the worker is on call on his/her employer \200\231s premises, but not when he/she is on call at home. They do not include tr avel to and from work unless the worker \200\231s job involves travel, e.g. a traveling sal esman Employers are permitted to ask workers to opt out by agreement in writing. Workers must not be penalized for refusing to do so Employers must keep records, and are subject to inspection by the HSE There is a general duty in the Health and Safety at Work Act to prevent risks to health and safety. This applies to overlong working hours Young workers (under 18yrs old) are prohibited from working more than 8h a day or 40h a week The regulations extend to self-employed workers as well as employees. Night workers \200 There are special provisions relating to night workers, de \201 ned a s working at least 3h of daily working time between 23.00 and 06.00 hours An employer shall ensure that no night worker, whose work involves special hazards or heavy physical or mental strain, works for more than 8h in any 24h perio d during which the night worker performs night work. Night workers \200\231 health assessments \200 Every adult worker assigned to night work must have the opportunity of a free health assessment before he/she takes up the assignment , and at regular intervals as appropriate. This should be done through a screening question naire, compiled with guidance from a quali \201 ed health professional. (See b p. 756, Nig ht worker health assessment). Where a potential problem is disclosed, referral to a health professional is advised Where a doctor has advised an employer that a worker is suffering from health problems that the practitioner considers to be connected with night work, the e mployer should, where possible, transfer the worker to suitable day work. 26_Smedley_Chap26.indd 574 1/2/2013 12:41:48 PM WORKING TIME REGULATIONS 1998 575 Rest periods and holidays \200 Adult workers must be given a rest period of at least 24h every week and a rest break of at least 20min after 6h. They must have a rest period of at least 11h in each 24h period There are special provisions for workers under 18yrs old: they must have a rest period of at least 48h a week and a rest break of at least 30min after 4.5h they are entitled to a rest period of at least 12h in each 24h period \200 young workers should not normally be employed to work at night, but in exceptional cases they may be assi gned to night work, e.g. work in hospitals young workers assigned to night work must have the opportunity of a free assessment of thei r health and capacities before they take up the assignment Workers are entitled to a minimum of 28 days a year paid holiday, which includes bank holid ays. Part-time workers are entitled to paid holidays pro rata Employees who are absent on sick leave continue to accrue rights to paid holidays which can be taken after they return to work \200 The holiday provisions ar e enforced through the employment tribunals. Relevant legislation Working Time Regulations (1998) (as amended). Further information Department of Trade and Industry (2003). Your Guide to the Working Time Regulations (VRN 00/1068) . Department of Trade and Industry, London. Available at: M http ://www.dti.gov.uk/ employment/employment-legislation/employment-guidance/page28978.html HSE (2006). Managing shift work , HSG 256. HSE Books, Sudbury. 26_Smedley_Chap26.indd 575 1/2/2013 12:41:48 PM This page intentionally left blank 577 Chapter 27 Legislation related to occupational health records Data Protection Act 1998 578 Access to Medical Reports Act 1988 580 Freedom of Information Act 2000 582 27_Smedley_Chap27.indd 577 1/2/2013 12:43:03 PM CHAPTER 27 Legislation related to oh records 578 Data Protection Act 1998 Purpose The Data Protection Act 1998 came into force in 2001 and g overns the collection, holding, use or release of data on individuals as required by EC Dir ective 95/46/EC. It sets out principles of good data handling ( \200\230the eight principle s \200\231) and confers several rights on individuals. This Act replaces the Data Protectio n Act 1984 and the Access to Health Records Act 1990, although the latter still applies to access to the medical records of dead people. (cid:2) An organization found in breach of th e Act may face a substantial \201 ne. Application The Act applies to individuals and organizations (data controllers) based in th e UK or processing data in the UK. The Act covers all health records including X-rays, vide o, and audiotapes. De \201 nitions \200 Data controller : the person who determines the purpose and manner of data processing Data is information which is: \200 processed by computer \200 recorded to be processed by a computer \200 held in a \200\230relevant \201 ling system \200\231 \200 part of an accessible record Data subject : the person to whom the data relates \200 Personal data relates to a living individual who may be identi \201 ed from that data alone, or in combination with other d ata, held by the data controller Sensitive personal data includes: an individual \200\231s race or ethnicity \200 political beliefs \200 religious or othe r beliefs \200 trade union membership \200 health \200 sex life \200 crimes or alle ged crimes \200 criminal convictions Caldicott guardian: a senior health or social services professional responsible for controlling the management, use, and disclosure of health or social service s data sets. A system set up following the report by the Caldicott Committee to the Departm ent of Health in 1997 on the use and transfer of patient identi \201 able information for purposes other than patient care, research or statutory noti \201 cation. Main requirements \200 Data processors must register with the Information Commissioner \200\231s Of \201 ce and pay a small fee. Failure to register is a criminal offense 27_Smedley_Chap27.indd 578 1/2/2013 12:43:03 PM DATA PROTECTION ACT 1998 579 The Data Protection Act confers a right of access to health records irrespective of when the health record was created: Subject access request should be made i n writing (or by email). 2 It is important to con \201 rm the identity of the person makin g the request, especially where the records requested are old. Where a third party, e.g. a solicitor, makes the request you must satisfy yourself that they have the subject \200\231s permission to do so \200 All requests should be acknowledged, logged and tracked to completion. This permits subsequent audit Access may be denied where information in the health record may cause serious harm to the p hysical or mental health of the applicant or any other person. A medical practitioner must make this decision and should carefully document their reasoning Access may be denied where disclosure would release information regarding or provided by a third party who had not consented to disclosure Fees may be charged by the data controller to re \202 ect the actual costs incurred to produce copies of health records up to a maximum of 10 for computer rec ords and 50 for paper records Alternatively, the individual may inspect their records at no cost \200 Access to health records should be provided within 40 days. The eight principles of good practice \200 Data processors must comply with \200\230the eight principles of good practice \200\231 such that: \200 data are fairly processed \200 processing is for limi ted purposes \200 data are adequate, relevant, and not excessive \200 data are accurate and up to date \200 data are retained only for as long as necessary \200 data processi ng is in line with subjects \200\231 rights \200 data are secure \200 data are not tran sferred out with the European Economic Area except to a country with adequate data protection laws*. Privacy laws in the USA differ from the EU, and so the US \200\223European Union Safe Harbo r Framework was set up. US companies that self-certify to the US EU Safe Harbor Framework d emonstrate that their organization provides \200\230adequate \200\230 privacy protection, as de \201 ned by the Directive, so allowing data transfers from EU countries to that US c ompany. Legislation and guidance \200 Website of the Information Commissioner. M http://www.ico.g ov.uk/ \200 The Employment Practices Code 2005 \200 Data Protection Act 1998 \200 Con \201 dentiality: NHS Code of Practice, Department of Health, 2003. \200 Website of Busi ness USA detailing the Safe Harbor framework. Available at: M http://export.gov/safeharbor/ 27_Smedley_Chap27.indd 579 1/2/2013 12:43:03 PM CHAPTER 27 Legislation related to oh records 580 Access to Medical Reports Act 1988 Purpose This Act gives a person a right of access to med ical reports regarding themselves prepared by a medical practitioner, who has provided care to them, for the purposes of employment or insurance. Application in occupational health The Act applies to any person or organization that wishe s to obtain a medical report on an individual for employment or insurance purposes. Reports requested by an OH professional The Act clearly applies when an Occupational Health professional requests a report from an employee \200\231s doctor. Reports produced by an OH professional (cid:2) Some have argued that this legislation does not apply to reports pro- duced by OH professionals as they do not provide care. However, t here may be situations where they do provide care and the Act does apply: see the Faculty o f Occupational Medicine \200\231s Guidance on Ethics for examples. In addition: \200 It i s good practice to discuss with an employee the contents of any medical report to an employ er. Failure to do so can undermine the doctor \200\223patient relationship The individual can request access to a medical report under the Data Protection Act The GMC has produced guidance for doctors stating that a patient must have the right of acc ess to any reports written about them for insurance or employment purposes, including recei ving a copy (if they wish) before the report is released: \200 the GMC do not explicitly allow a 21-day period for the patient to have access to the report before it is sent although the GMC guidance does not strictly apply to OH nurses, it is good practice for them to follow these principles. De \201 nitions \200 Applicant: the person requesting a medical report \200 Medical re port: a report regarding the physical or mental health of an individual prepared by a medic al practitioner responsible (now or in the past) for the clinical care of that individual. Main requirements \200 An employer wishing to obtain a medical report on an employee or prospective employee can only do so with his/her consent. (This should be in writing and a copy of the signed consent provided to the medical practitioner.) The employee must be informed of his/her rights under the Act and most employers will provi de this information in writing. The employee \200\231s rights are: \200 to withhold conse nt for the report 27_Smedley_Chap27.indd 580 1/2/2013 12:43:03 PM ACCESS TO MEDICAL REPORTS ACT 1988 581 to have access to the report before consenting to its submission to the employer to make a written request to the medical practitioner for amendment of any part of a report which he/she considers wrong or misleading to have access to the report up to 6 months after submission. \200 Where an employee wish es to see the medical report the applicant must advise him/her that they have requested the report so that the individual can contact the medical practitioner to see the report withi n 21 days Having seen the report, the employee may decide to withhold consent for the report to be provided to the applicant If an individual indicates that he/she wants to see the report but then fails to contact th e doctor within 21 days to see it, the doctor can submit the report to the applicant If an individual believes a report is wrong or misleading and the medical practitioner does not agree to amend the report, the individual may request that a statement of his/her view s be attached to the report before he/she consents to release the report. Alternatively, th e employee may decide to withhold consent to release the report \200 A doctor can withhol d access to any part of a report he/she believes may cause serious harm to the individual \200\231s health. The doctor should inform the individual of his/her decision to deny acces s. In practice it is rare to withhold access to part of a report A medical practitioner can withhold access to any part of a report where it would reveal the identity of a third party who had provided information about the individual unless that third party consents or is a health care worker and the information was imparted as part of his/her job The individual has a right of access to a medical report for a period of 6mths, and so the medical practitioner must retain a copy for 6mths after the report is provided. Legislation and guidance \200 Access to Medical Reports Act 1988 \200 Faculty of Occupa tional Medicine (2006). Guidance on Ethics for Occupational Physicians , 6th edn. FOM, London. BMA (2009). Access to medical reports \200\223 guidance from the BMA Medical Ethics Department . Available at: M http://www.bma.org.uk/ethics/ health_records/accessmedr eports.jsp GMC (2009). GMC supplementary guidance. Con \201 dentiality: disclosing information for insurance, employment and similar purposes . available at: M http://www.gmc -uk.org/static/documents/content/Con \201 dentiality_ disclosing_info_insurance_2009.pdf 27_Smedley_Chap27.indd 581 1/2/2013 12:43:03 PM CHAPTER 27 Legislation related to oh records 582 Freedom of Information Act 2000 The Freedom of Information Act 2000 provided for public acc ess to information held by, or on behalf of, publicly funded bodies in England, Wales, and Northern Ireland. Similar legislation applies in Scotland: the Freedom of Information (Scot land) Act 2002. These pieces of legislation were intended to create a culture of openness a mong public bodies. The Freedom of Information Act 2000 created the Information Commissione r \200\231s Of \201 ce (ICO) whose role is to enforce the Act. The Act was subsequently up dated by the Environmental Information Regulations 2004 (EIR). In Scotland the Scottish Inf ormation Commissioner ful \201 ls the ICO \200\231s role. De \201 nitions \200 Public authorities include: \200 central government \200 local authorities \200 police \200 prison service \200 health authorities \200 NHS GPs, d entists, opticians, and pharmacists \200 educational establishments. Main requirements \200 All public bodies must produce a publication scheme (approved by t he Information Commissioner) stating what information they routinely make available (e.g. a nnual reports, committee minutes) and how to obtain it An information request may be made verbally, in writing, or by email. \200 Public bodies must respond promptly to such information requests and in any event within 20 days There are 23 exemptions from disclosure in the Act. Some are absolute while others are quali \201 ed exemptions: \200 information covered by an absol ute exemption includes personal