Periodic reviews (usually annual) involve review of dosimetry results and sickness absence records. Medical examination may be required at the doctor \200\231s d iscretion Health records must be kept for 50yrs after the last entry. Accidents and over-exposures \200 Where a radiation accident occurs, the ADS should be contacted and arrangements made to determine employees \200\231 radiation exposure as soon as possible Where an over-exposure occurs the employer must investigate the circumstances, having noti \201 ed the affected individual and HSE of the suspected over-exposure. Legislation and guidance Ionizing Radiation Regulations 1999. Approved Code of Practice and Guidance. L121, HSE Books, Sudbury. ISBN 9780717617463. Available at: http://www.legislati on.gov.uk/uksi/1999/3232/contents/made 25_Smedley_Chap25.indd 543 1/2/2013 12:40:06 PM CHAPTER 25 UK health and safety legislation 544 Diving at Work Regulations 1997 (cid:2) Assessment of \201 tness to dive at work is the r emit of an HSE Approved medical examiner of divers (AMED). Where such an assessment is requ ired, the diver should be referred to such a doctor. Purpose To regulate diving operations at work. Application The Diving at Work Regulations apply to all diving at work, but different codes of practice apply to the \201 ve industry sectors and give sector-speci \201 c informat ion on the management of health and safety in diving operations. The ACOPs cover: Commercial diving inland/inshore \200 Commercial diving offshore \200 Media diving \200 Scienti \201 c and archeological diving \200 Recreational diving projects. 2 Hyper baric treatment at a hospital is excluded from the regulations. De \201 nitions \200 Diver: a person who dives at work \200 Diving operation: that por tion of a diving project which can be safely supervised by one diving supervisor Diving project: the overall job, which may be a single dive or series of dives Diving contractor: each diving project can have only one diving contractor (Reg. 5), usually the divers \200\231 employer. Most of the duties under these r egulations fall on the diving contractor. Main requirements \200 The ACOP relevant to a diving project is usually obvious. However, any diving project using a closed diving bell or saturation diving automatically falls und er the commercial diving projects offshore ACOP, irrespective of dive location The dive contractor must ensure that the diving project is safely run, and that risk assessments are undertaken A project plan must be prepared for each diving project (Reg. 6) \200 All staff involved in a diving operation must be competent \200 A diving supervisor must be appointed in wri ting \200 All equipment and plant must be suitable and well maintained (Reg. 6) \200 On ly one diving supervisor can supervise a diving operation at a time (Reg. 9), and there mus t be well-documented handovers between supervisors All divers must possess: an HSE approved quali \201 cation to dive (Reg. 12) \200 a valid medical certi \201 cat e of \201 tness to dive issued by an AMED. 25_Smedley_Chap25.indd 544 1/2/2013 12:40:06 PM DIVING AT WORK REGULATIONS 1997 545 Legislation and guidance \200 Diving at Work Regulations (SI 1997 No2776). Stationery Of \201 ce, Norwich. Available at: http://www.legislation.gov.uk/uksi/1997/2776/ contents/made HSE (1998). Commercial Diving Projects Inland/Inshore , Approved Code of Practice, L104. HSE Books, Sudbury. HSE Commercial Diving Projects Offshore , Approved Code of Practice, L103. HSE Books, Sudbury. HSE Media Diving Projects , Approved Code of Practice, L106. HSE Books, Sudbury. HSE Scienti \201 c and Archeological Diving Projects , Approved Code of Practice, L107. HSE Books, Sudbury. HSE Recreational Diving Projects , Approved Code of Practice, L105. HSE Books, Sudbury. HSE further information and list of Approved Medical Examiner of Divers. Available at: http://www.hse.gov.uk/diving/index.htm 25_Smedley_Chap25.indd 545 1/2/2013 12:40:06 PM CHAPTER 25 UK health and safety legislation 546 Work in Compressed Air Regulations 1996 Purpose These regulations govern the conduct of con struction works in com- pressed air. Application Applies to all construction work under pressures >0.15bar, except where the Div ing Operations at Work Regulations apply. De \201 nitions Dysbaric illness \200 Barotrauma: usually affects sinuses, ears or lungs \200 Dysbaric osteonecrosis (see Table 25.1) \200 Decompression illness. Table 25.1 Radiological surveys to detect dysbaric osteonecrosis Pressure X-rays Frequency <1.0bar Not required None >1.0bar AP of both shoulders and hips including proximal third of shafts together with AP and later al views of distal two thirds of both femurs and proximal third of both tibia including kne es Within 3mths of commencement Annually while work continues and 1yr after exposure ceases >2.0bar As above > than annual Main requirements \200 The compressed air contractor must have a safe system of work in compressed air (Reg. 7) The contractor must appoint competent personnel as the: person in charge \200 compressor attendant \200 lock attendant For work at >1bar the contractor must appoint a medical lock attendant The contractor must notify in writing 14 days before and on suspension/completion of compre ssed air work (Reg. 6): \200 HSE \200 local hospital casualty department \200 emergen cy services ( \201 re, ambulance) \200 local hyperbaric facilities The contractor must provide suitable equipment, \201 t for use at pressure. 25_Smedley_Chap25.indd 546 1/2/2013 12:40:06 PM WORK IN COMPRESSED AIR REGULATIONS 1996 547 Medical adviser and examinations \200 A contract medical adviser (Reg. 9) shall be appoin ted. This person may also be the HSE appointed doctor The contract medical adviser \200\231s role includes: planning for compressed air work including health surveillance (Reg. 10) treatment of dysbarism \200 record keeping (retain for 40yrs) \200 occupational medical advice No-one can work in compressed air unless passed \201 t by the appointed doctor (Reg. 16) Medical surveillance requires: full medical examination of \201 tness for work at pressure at entry \200 review every 3mths (<1.0bar) or every month (>1.0bar) \200 full medical assessment every 12mths \200 medical assessment following illness >3 days \200 medical assessment after any dysbaric illness \200 The content of the full medical examination and review are described in Appendix 7 of the regulations. The initial assessment includes detailed history and exam ination, spirometry, and audiometry For work at pressures >1.0bar, an exercise step-test, initial CXR, and full blood count are also required The employer shall maintain a health and exposure record for 40yrs, including employee \200 \231s and employer \200\231s details, appointed doctor \200\231s details, health surveillan ce results, exposure record, and training record. Treatment \200 The contractor must provide treatment facilities for dysbaric illness (Reg. 12) Provision for emergencies, including \201 res, must be made \200 Decompression from >1. 0bar normally employs the Blackpool tables. Rates of decompression illness associated with these tables exist and can be used to benchmark decompression illness rates on a project \200 All workers must be provided with a badge to alert others to their work in compressed air should they be incapacitated owing to dysbarism. Training Employees and other workers must receive information, instruction, and training (R eg. 15) as to safe operating procedures, hazards of compressed air work, and health surveil lance. Legislation and guidance \200 The Work in Compressed Air Regulations 1996. Available at: M http:// www.legislation.gov.uk/uksi/1996/1656/contents/made Construction (Design and Management) Regulations 2007. Available at: M http://www.legislation.gov.uk/uksi/2007/320/contents/made Reporting of Injuries, Disease and Dangerous Occurrences Regulations 1995. Available at: M http://www.legislation.gov.uk/uksi/1995/3163/ contents/made 25_Smedley_Chap25.indd 547 1/2/2013 12:40:06 PM CHAPTER 25 UK health and safety legislation 548 Control of Noise at Work Regulations 2005 Purpose The aim of the regulations is to ensure t hat workers are protected from the risks to health caused by noise. The noise regulations i mplement the EU directive 2003/10/EC on the minimum health and safety requirements regardin g the exposure of workers to the risks arising from physical agents (noise). Application \200 The regulations apply to employers, the self-employed, and trainees \200 The regulations do not apply to the master and crew of a merchant ship during normal shipboard activities Members of the public are not covered where they are exposed to noise through their own activities (e.g. DIY) or where they have made a conscious decision to enter a noisy place (e.g. a nightclub). De \201 nitions \200 For daily or weekly exposure: lower exposure action value is 80dB(A) \200 upper exposure action value is 85dB(A) \200 exposure limit value is 87dB(A). For peak sound pressure: lower exposure action value is 135dB(C) \200 upper exposure action value is 137dB(C) \200 exposure limit value is 140dB(C). Main requirements \200 Employers must undertake a \200\230suitable and suf \201 cient \200\231 risk assessment (Reg. 5) of the risks of noise exposure and identify control measu res Employers must ensure that the risk from noise exposure is either eliminated at source or, where this is not possible, reduce exposure to as low a level as i s reasonably practicable (Reg. 6) Where employees are likely to be exposed at, or above, the lower exposure action value, the employer must provide hearing protectors on request Any area where employees are likely to be exposed at, or above, the upper exposure action v alue must be signed as a hearing protection zone and, where possible, demarcated Where the upper exposure action value is likely to be exceeded, the employer must eliminate exposure at source or reduce exposure to a level as low as is reasonably practicable, (exc ludes hearing protection) \200 Workers must not be exposed to noise above an exposure lim it value. \200 Where an exposure limit value is exceeded, after allowing for any noise attenuation afforded by hearing protectors, the employer must take immediate action t o reduce exposure. This may include stopping the work 25_Smedley_Chap25.indd 548 1/2/2013 12:40:06 PM CONTROL OF NOISE AT WORK REGULATIONS 2005 549 Hearing protectors must be provided in a hearing protection zone (Reg. 7) Employers must enforce the use of hearing protectors where they are required (Reg. 8) Any noise control equipment must be used and maintained (Reg. 8). \200 Employees have a d uty to use personal hearing protectors provided in compliance with Reg. 7 and other noise c ontrol measures provided Employees should report promptly, any defects in noise control measures, including hearing protectors, to their employer Where the risk assessment indicates a risk to workers \200\231 health because of noise exposure, suitable health surveillance must be provided (Reg. 9) Appendix 5 of the guidance gives detailed information on audiometric testing and Part 6 of the guidance gives more information on health surveillance for noise-induced hearing loss Where, following health surveillance, hearing damage due to noise is found the employer shall ensure that: \200 a suitably quali \201 ed person noti \201 es the employee \200 the noise risk assessment is reviewed \200 the employer considers re deploying the worker to a non-exposed job Employees must cooperate with health surveillance and attend appointments The employer must pay the employee when attending health surveillance and meet any associated costs (Reg. 9) Where employees are likely to be exposed above the lower action value, the employer must provide suitable information, instruction, and training (Reg. 10). This should cover the risks of noise exposure, the results of any risk assessment, and the measures in place to control noise Employees should be advised of the availability of hearing protectors and how to obtain them Workers should be told how to detect and report hearing damage \200 Employees should be g iven an explanation of the reasons for health surveillance and informed of the grouped results of any health surveillance. Legislation and guidance \200 HSE (2005). Controlling Noise at Work , The Control of Nois e at Work Regulations 2005. Guidance on regulations, L108. HSE Books, Sudbury. The Control of Noise at Work Regulations 2005. Available at: M http://www.legislation.gov.u k/uksi/2005/1643/contents/made \200 See also b p. 4, Noise 1: legal requirements, and ris k assessment; b p. 6, Noise 2: instrumentation and determination of LEP,d; b p. 302, Noise induced hearing loss; b p. 430, Classi \201 cation of hearing loss; b p. 432, Patterns of hearing loss; b p. 764, Screening audiometry; b p. 778, Carry out a noise assessment. 25_Smedley_Chap25.indd 549 1/2/2013 12:40:06 PM CHAPTER 25 UK health and safety legislation 550 Control of Vibration at Work Regulations 2005 Purpose To protect against risks to both heal th and safety from hand-transmitted vibration. This includes risk of hand \200\223arm vibra tion syndrome (HAVS) and carpal tunnel syndrome in exposed workers and situations where vib ra- tion may affect the ability to handle controls safely. Application \200 Duties apply to both employers and self-employed persons \200 The spec i \201 c regulation dealing with compliance with exposure limits will not apply to agricultural and forestry until 2014 for work equipment provided t o employees before July 2007 The regulations do not apply to the master or crew of a merchant ship during normal shipboard activities. De \201 nitions \200 Hand-transmitted vibration is the vibration which enters the body t hrough the hands, e.g. tools used in construction, agriculture, and mining Daily personal exposure or A(8): average vibration over a working day of 8h Daily exposure limit value (ELV) is 5m/s 2 A(8) \200 Daily exposure action value (EAV) is 2.5m/s 2 A(8). Main requirements Part 1 of the guidance on regulations deals with the legal duties of empl oyers: \200 The ELV is the maximum amount of vibration to which an employee may be expose d in any single day. The EAV is the daily exposure to vibration above which action needs to be taken to reduce exposure (Reg. 4) An employer who carries out work which is liable to expose employees to risk of vibration is required to assess the risk to the health and safety of e mployees and identify measures needed to prevent or adequately control exposure (Reg. 5) The risk assessment should take into consideration the following: the type of vibration, and its magnitude, and duration \200 the effect of vibration on em ployees whose health is at particular risk from exposure to vibration information from manufacturers of equipment used \200 work conditions, e.g. temperature \200 information from health surveillance Signi \201 cant \201 ndings of the assessment should be recorded together with measures taken to minimize risks Action must be taken to eliminate risks from vibration exposure completely wherever it is reasonably practicable to do so (Reg. 6). 25_Smedley_Chap25.indd 550 1/2/2013 12:40:06 PM CONTROL OF VIBRATION AT WORK REGULATIONS 2005 551 Hence there is a need to consider alternative processes, choice of work equipment, and/or b etter working methods Health surveillance (Reg. 7) to be provided for: employees likely to be exposed above the EAV or \200 where the risk assessment indicates individuals may be at risk, e.g. those more sensitive to vibration A health record must be kept for each employee who undergoes health surveillance. This should contain information on the outcome of the health surveilla nce and the individual \200\231s \201 tness to continue to work with vibration exposure Where as a result of health surveillance an employee is found to have a disease from exposu re to vibration, the employer must ensure that a quali \201 ed person informs the employee . The employer should also review the risk assessment and the health of other employees Employers should ensure that employees understand the level of risk they may be exposed to, how it is caused, possible health effects, safe work practices, and how to detect and repo rt signs of injury (Reg. 8) \200 Parts 2 \200\2235 of the guide to the regulations provid e practical information for employers on carrying out risk assessment, estimating exposure, controlling risks, and arranging health surveillance, and the duties of machinery manufact urers and suppliers. Part 6 provides technical guidance on exposure measurement and Part 7 provides guidance on health surveillance. Legislation and guidance \200 HSE Hand \200\223arm vibration , The Control of Vibration a t Work Regulations 2005. Guidance on Regulations, L140, HSE Books, Sudbury HSE The Control of Vibration at Work Regulations 2005. Available at: M http://www.legislati on.gov.uk/uksi/2005/1093/contents/made \200 HSE Control the risks from hand \200\223arm v ibration , INDG175 (rev2), HSE free lea \202 et. Available at: M http://www.hse.gov.uk/pub ns/indg175.pdf HSE Hand \200\223arm vibration: advice for employees , INDG296 (rev1), HSE free pocket card. Available at: M http://www.hse.gov.uk/pubns/ indg296.pdf See also b p. 10, Vibration 2: hand-transmitted vibration, b p. 438, Surveillance for hand \200\223arm vibration syndrome; and b p. 768, Clinical assessment of hand \200\223arm vibra tion syndrome. 25_Smedley_Chap25.indd 551 1/2/2013 12:40:06 PM CHAPTER 25 UK health and safety legislation 552 Food Hygiene Regulations 2006 Purpose The Food Hygiene (England) Regulations 2006 were intr oduced to ensure food hygiene regulations in England met EU directives. Similar regulations apply in Wales, Northern Ireland and Scotland. They apply to anyone who owns, manages or w orks in a food business. They cover primary produc- ers, large manufacturers and restaurant s, as well as small mobile catering vans or fast food outlets. Main provisions In summary the regulations require: \200 Food businesses to register all premises with the local authority. New premises must be registered 28 days before food prod uction begins \200 Meat, egg, \201 sh or dairy producers must have their premises appro ved by the local authority Food safety management should be based on the principles of Hazard Analysis and Critical Control Points (HACCP) \200 Food premises to be clean and well main tained \200 Food premises to have adequate handwashing and toilet facilities \200 Raw m aterials to be free from contamination \200 Water used to be of drinking quality \200 M easures to avoid contamination during transportation \200 Food handlers to be trained in hygiene procedures and to report conditions such as diarrhea or vomiting to their manager Foods that need temperature control must be hot at or above 63 C, or cold at or below 8 C. HACCP In order to manage the potential risks to food in a complex business, a management sy stem is required. HACCP is an internationally recognized system used to identify hazards an d control risks along the production line. The business must: \200 Identify hazards such as contamination with bacteria or foreign b odies (e.g. glass) Look for critical points where the contamination can take place \200 Implement control me asures at these points \200 Check that control methods work \200 Put in place procedure s to review these points regularly \200 In a small business the system will be simpler, b ut will (for example) involve regular checks of refrigerator temperatures. Further information and guidance HM Govt (2006). Food Hygience (England) Regulations 2006. Available at: M http://www.legisla- tion.gov.uk/uksi/2006/14/contents/made Food Standards Agency. Hygiene legislation. Available at: M http://www.food.gov.uk/foodindu stry/ regulation/hygleg/hygleginfo/foodhygknow/ See also b p. 478, Fitness for work in food handlers. 25_Smedley_Chap25.indd 552 1/2/2013 12:40:06 PM This page intentionally left blank CHAPTER 25 UK health and safety legislation 554 Registration, evaluation, authorization, and restriction of chemicals Purpose REACH is a si ngle, uni \201 ed framework for the regulation of chemical sub- stances throughout the EU. Its purpose is to: \200 Provide a high level of protection for human health and the environment Improve the competitiveness of the EU chemical industry \200 Promote the development of t est methods other than animal testing. Application \200 REACH was launched in 2007 and applies to manufacturers or importers (M/I) that supply chemical substances to the EU market in quantities greater than one ton per year. A substance cannot be manufactured or imported into the EU without prior registration. Registration is due to be completed in 2018 REACH applies to chemical substances, mixtures and (with quali \201 cations) substances released from preparations or articles. However, REACH asse ssment is conducted only in relation to a single substance regardless of potential co-expos ure to other substances whether added intentionally or occurring as waste products \200 T he European Chemicals Agency (ECHA) is responsible for the implementation of REACH. In the UK, the Competent Authority is the HSE and enforcement is through the REACH Enforcement Reg ulations, 2008. De \201 nitions Key de \201 nitions of relevance to occupational health in REACH are: \200 Chemical safety assessment (CSA): determination of risk presented by a substance Chemical safety report (CSR): documentation of the CSA \200 Derived no-effect level (DNEL ): level of exposure below which no adverse effects are expected to occur Exposure scenario: set of conditions de \201 ning the use of a substance through its life cycle Risk characterization: estimation of the incidence and severity of adverse effects due to actual or predicted exposure Substance of very high concern (SVHC): substances that are carcinogenic, mutagenic, persist ent bioaccumulative and toxic (PBT), very persistent and very bioaccumulative (vPvB) or oth erwise SVHC assessed on a case-by-case basis Technical Dossier: description of intrinsic properties, classi \201 cation and guidance on safe use of a substance. 25_Smedley_Chap25.indd 554 1/2/2013 12:40:07 PM CHEMICALS 555 Main requirements Registration Remaining timelines for registration: \200 100 \200\223100 0tons/yr, 31 May 2013 \200 1 \200\223100tons/yr, 31 May 2018. Main M/I and related respon sibilities \200 Submission of a technical dossier (> 1ton/yr) and CSA (>10tons/yr). CSA is to include calculation of the DNEL If a substance is \200\230dangerous \200\230 (under REACH Article 10a), PBT or vPvB, CSA i s also to include exposure scenarios, exposure assessment and risk characterization. These are to incorporate the effect of existing or planned Risk Management Measures (RMM) M/I is to convey information on the safe use and necessary RMM to downstream users (DU). DU have a responsibility to apply the necessary RMM CSA to be documented in the CSR \200 M/I may pool data through a substance information ex change forum (SIEF) and apply for joint registration though a lead registrant. Evaluation ECHA and member states \200\231 (MS) competent authorities are responsible for t he examination of dossiers for completeness, testing proposals in relation to health effect s and substance evaluation i.e. need for further information. Authorization Speci \201 c conditions may apply to authorization of SVHC with considera- t ion of the following; the suitability of alternative substances or technolo- gies, a study of the feasibility of substitution, socio-economic analysis to assess overall risk/bene \201 t and the effectiveness of existing RMM. Restriction Provision for a limitation on use or complete prohibition of substances that pr esent an unacceptable risk at a community-wide level. Further information ECHA issues guidance on the application of REACH which is available at: M http://guidance.echa. europa.eu 25_Smedley_Chap25.indd 555 1/2/2013 12:40:07 PM This page intentionally left blank Chapter 26 Employment law 557 Employment law 558 Compensation 560 Equality Act 2010 562 Disability discrimination 1: De \201 nition of disability 564 Disability discrimination 2: Employer \200\231s duties 566 Se x discrimination 570 Age discrimination 572 Working Time Regulations 1998 574 26_Smedley_Chap26.indd 557 1/2/2013 12:41:46 PM CHAPTER 26 Employment law 558 Employment law This is, of necessity, an abridged account of detailed and complex legisla- tion. The interested reader is referred to more detailed texts. Employment law \200 Employment law in the UK is a mixture of civil law, concerned with co mpensation, and criminal law, concerned with punishment. Some employment law is in the form of case law, and some in the form of statute law, setting standards for the behavior of em ployers in terms of equality, data protection, and health and safety at work (see Table 26. 1) The courts of law, in deciding cases brought before them, create precedents which may be applied in future similar disputes. Decisions of higher courts, lik e the Supreme Court and Court of Appeal, are binding on lower courts. Much of the civil law is made by the judges in this way, without recourse to Parliament. We call this judge-made law the common law Statutes are Acts of Parliament; that is the House of Commons, the House of Lords, and the Queen. The Scottish Parliament and the Welsh Assembly have limited powers to create legisla tion for Scotland and Wales. Statute law takes precedence over case law, but the courts in interpreting the meaning of statutes also create precedents \200 Statutory instruments, o r statutory regulations, are delegated legislation made by a government minister by virtue of the authority given to him/her in a statute. They do not need to be debated in Parliament, unless an MP questions them. Delegat ed legislation is used to provide detailed provisions which Parliament has insuf \201 cien t time to create. The statute lays down the principle, which is then expanded in regulation s. Employment tribunals \200 Employment tribunals are specialist employment courts which deal with unfair dismissal, redundancy payments, and laws against discrimination at work They sit in several large towns and are composed of a legally quali \201 ed judge who some times sits with two lay members, one representing employers and the other employees They can award money compensation and make recommendations, but have no power to force an e mployer to reinstate an employee \200 The law that the employment tribunals administer is laid down in a number of statutes and regulations, which have been interpreted by the cour ts. Enforcement of civil law \200 The enforcement of the civil law is not a matter for the HS E, the local authorities, or the police. A civil action is brought by the person claiming a remedy : the claimant In England and Wales actions for damages for personal injury must be brought in the County Court or the High Court 26_Smedley_Chap26.indd 558 1/2/2013 12:41:47 PM EMPLOYMENT LAW 559 In Scotland actions for damages for personal injury are brought in the Sheriff Court or the Court of Session Appeals against a refusal of social security bene \201 ts must be taken to a \201 rst tier tribunal Complaints that an employer has unfairly dismissed an employee, or unlawfully discriminated against him/her because of a protected characteristic under the Equality Act 2010 must be taken to an employment tribunal. Table 26.1 The main differences between civil law and criminal law Civil law Criminal law Main purpose Compensation Punishment Source of law Statute or case (common) law Statute law Prosecuting authority None \200\224civil action by claimant Crown Prosecution Service a Procurator Fiscal b HSE Local authority Insurance Employers \200\231 Liability Insurance None a England and Wales b Scotland 26_Smedley_Chap26.indd 559 1/2/2013 12:41:47 PM CHAPTER 26 Employment law 560 Compensation State bene \201 ts \200 A system of no-fault compensation for occupational injuries and diseases, originally named Workmen \200\231s Compensation, now the Industrial Injuries Bene \201 ts Scheme, has existed in the UK since 1897 \200 Financed through tax ation; administered by the State (now the DWP) \200 The scheme covers all employed earner s, but not the self-employed \200 A disablement pension is payable to a person who has: suffered a personal injury caused by accident arising out of and in the course of employment, or contracted a prescribed disease, i.e. one designated by the Secretary of State as a special risk for a particular occupation \200 The Industrial Inju ries Advisory Council (IIAC) advises the Secretary of State regarding the diseases that sho uld be considered for prescription under the scheme, and generally on its operation Prescription will be recommended when epidemiological evidence shows that a particular job is associated with a doubling of risk of the disease (compared with a member of the general public) A list of prescribed diseases is found in the Social Security (Prescribed Diseases) Regulat ions 1985 (see b Appendix 2: list of prescribed diseases). Regularly updated by statutory i nstrument. Prescribed diseases are divided into: \200 conditions due to physical agents, e.g. tenosynovitis for manual labor or frequent repetitive movements of the hand or wrist \200 conditions due to biological agents (e.g. anthrax for work involving contact with animal products or residues) conditions due to chemical agents (e.g. lead poisoning for work involving exposure to lead), and miscellaneous conditions (e.g. asthma for work involving exposure to any of a long list of agents including isocyanates). Claims for industrial injuries disablement bene \201 t (IIDB) \200 Claims must be made t o the DWP, where assessment is made by a civil servant aided by medical evidence from the D WP \200\231s doctors. Appeal to a tribunal consisting of a legally quali \201 ed judge and two doctors A tax-free pension is payable to those who qualify for bene \201 t only where the disability is assessed as at least 14% (except noise-induced hearing loss (>20%) and pneumoconiosis, byssinosis, or diffuse mesothelioma (no level)) Lump sum payments and death bene \201 ts have been abolished \200 A reduced earnings all owance to compensate for incapability to follow the regular occupation is payable to those injured by an accident or the onset of a prescribed disease before 1 October 1990 Those who are 100% disabled and need constant care are also entitled to a constant attendance allowance or an exceptionally severe disablement allowance. 26_Smedley_Chap26.indd 560 1/2/2013 12:41:47 PM COMPENSATION 561 Civil compensation \200 Compensation can be obtained through a civil action in tort. A to rt (from the Latin for twisted) is a civil wrong, which gives rise to an action for damages . The equivalent in Scotland is a delict. In almost all cases liability is based on fault A successful claimant must deduct from the damages awarded all social security bene \201 ts received over 5yrs, to reimburse the DWP Legal aid is now available in only a few cases. Most claimants \201 nance their actions t hrough a conditional fee agreement with the lawyer, under which the lawyer is paid only if successful 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