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Posted By Mike Watson
Have you any experience of this scenario.
I was asked to provide some advice with regards to risk assessments for employees with health conditions. The friend who asked me works in an SME with a large turn over of staff.
Her dilemma is that the HR department does not want her to see the health survey forms of new employees, the manager stated that it is because of confidentiality issues, however she needs the information of the new employees at the start date, so she can undertake the assessments, and if needed, implement safe working systems etc for the individual employee.
The HR manager has informed her that once the individual’s condition becomes a problem then the H&S dept can undertake the assessment. Surely this is not common practice. She informs that the HR manager has little or no experience of H&S matters and is not undertaking the assessment for the H&D dept.
I get to consider all the health survey forms, and as a result, can consider any appropriate actions; we are very proactive in this area.
Further more, the employers will be aware of any condition that the new employee has, and as a result must act accordingly, not wait to see what happens. HASWA is clear on this, as is the MHSAW Regs.
I understand that employees don’t have to inform employers of health conditions; however once they have we must act accordingly.
Has this been a problem for others, any comments?
Mike Watson
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Posted By Ian Harper
I hav come accross this issue before and tackled it in this way.
In the event of an accident or incident as a result of the medical condition of the person, the company has knowledge. The fact that the HR dept did not share this information with the safety department is no defence.
The disclosure of information is confidential to the company and not to departments of the company, who should have procedures to allow access to authorised persons only. The HR may not be in the position to understand the safety implications unless they carry out the risk assessment.
I always argued that under section 7 of the HASAW 1974, that employees must disclose anything that may affect their safe working or require additional protection, including medical condition. In this case they are doing this by disclosing info to the company so they are legally in the right.
This may not be technically right but its the arguement I use.
Hope it helps.
Ian Harper
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Posted By Mike Watson
Thanks Ian
It has caused some debate amoung others I have discussed this with.
Any comments from HR professions, your feed back is welcome
Mike
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Posted By Ian Mycroft
In our organisation health and safety is attached to HR and the HR manager is also the H&S manger. I as the Health and Safety Officer am part of the HR department but have no function in HR issues and things like the results of pre-employment health surveys and sickness records etc. are not disclosed to me. I was told that this is because of confidentiality, but I can't do my job effectively if I don't have access to this information. Health and Safety Practitioners are professional people, or should be, who are quite capable of maintaining confidentiality, so where is the problem?
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Posted By Steve Crookes
Here is a can of worms!
Whilst occupational hygene has a code of ethics that could be considered to cover this subject, health and safety does not.
This information could be vital to employees safety and health, but it is understandably guarded. Perhaps consideration should be given to establishing a code of ethics for all safety and health professionals to abide by in this area and enshrined in the IOSH membership requirements. Perhaps there is already something similar in place......discussion is requested.....
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Posted By David Allan
Mike,
Worthy of consideration is the individual duty of care that employers owe to employees. This is illustrated by case law, in Paris vs Stepney Borough Council 1951, Mr Paris, who only had one good eye, was employed as a fitter and one of his roles was to remove rust and debris from the underside of buses - PPE was not routinely supplied for this. Unfortunately some rust went into his good eye and he was blinded. Damages were awarded to Mr Paris as the employers should have foreseen there was a greater risk to him and the fact that PPE was not routinely provided to other employees was irrelevant.
Obviously if your organisation doesn't know or use any Health information the chance of breaching this individual duty of care is increased. With the increase in no-win, no -fee claims for negligence I would be more concerned about this.
The standing of medical information with regard to H&S issues is a thorny one which deserves wider discussion. However, we are professionals and should be included in the loop, as should the line managers responsible for their day to day safety. A case of educating the HR department and agreeing a protocol perhaps?
Hope this helps
David
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Posted By Mike Watson
Thanks to all those who responded to this thread. I am surprised to read that others have had or are having the same issues.
Could IOSH respond? Its needed for clarity and guidance.
Regards
Mike
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Posted By Tony Harmsworth
I am a H&S Manager reporting to the HR Director and also responsable for the Occupational Health Dept. This is an issue that often rears its head but the law is very clear. Medical information is covered by two sets of special confidentiality regulations and cannot be disclosed to anyone, even H&S proffessionals, without the consent of the individual.
The answer is therfore very simple -the holder of the information, (HR or OH dept), asks the individual employee for permission to release the information to those who need to know, (line manger, H&S proffesionals, etc)in writing. If they agree there is no problem: if they don't, they must be warned of the consequences, and there is nothing else you can do.
There is one caviate, if the condition is likely to give rise to serious danger to themselves or others they can be dismissed, but you still cannot release the medical information without thier agreement.
Thats my understanding, e mail me at tony.harmsworth@environment-agency.gov if you wish to discuss further.
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Posted By David Allan
Tony
Thanks for the clarification. Could you post details of the regulations to the wider audience please.
I it would be interesting to ascertain what would be grounds for dismissal on personal or collective danger.
David
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Posted By Sarah J Shaw
I was intrigued to read about this issue as with many of you our company has had similar conflicts over data access. I am an EHS Manager reporting separately from the Occ.Health Dept who reports into HR.
Reading the comments written I think that an important aspect to all this has been over looked. When you risk assess a task/job you should be considering any conditions that may preclude an employee from being fit to carry out the work. The manual handling risk assessment specifically addresses this issue. I appraciate in saying this though that H&S people do not carry detailed medical knowledge. Each job should have some guidance from the H&S function as to the physical capabilities expected of the person being employed. In this way HR can do its function correctly.
If there is any doubt in the HR Dept's mind as to whether an employee would be fit to carry out work, and they do not have access to a company occupational physcian or nurse, then they should be writing to the employee's own GP. With the employee's consent of course.
Sarah J Shaw
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