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Posted By Martin Taylor
Are there any grounds where a colleague can decline occupational health surveillance - e.g. lung function testing, hearing measurements
where it is carried out in compliance with the relevant legislation
thanks
Martin
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Posted By paulw71
you have grounds to take disciplinary measures against an employee if they refuse these tests because they are to some extent in breach of legislation by.
Refusing to take reasonable care of their own health and safety.
Refusing to co-operate with the employer in following company health and safety policy (providing the testing is part of policy).
misusing something provided for their health and safety protection.
All this would depend of course on you being able to prove that the tests are neccessary.
This is of course just my interpretation and I am sure someone will correct me before not too long. (as usual)
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Posted By Paul Leadbetter
Martin
Although there seems to be no element of compulsion under MHSWR, see COSHH Reg 11(8) and Noise Regs 9(5) for the examples you have given.
Paul
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Posted By Juan Carlos Arias
HSAWA - 7- General Duties of employees.
"b) as regards any duty or requirement imposed on his employer, to co-operate with him so far as necessary to enable that duty or requirement to be performed and complied with"
In my opinion this person would also be in breach of your own company policy and could be dealt with accordingly, unless his refusal is on medical grounds, as you know to successfully complete a lung functioning test, a bit of effort from the person is required when blowing into the tube.
You might want to ask him for clearance from his own GP.
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Posted By Raymond Rapp
Juan beat me to it. I will also add that if a person refuses any form of health surveillance or check, then they may not be deemed suitable for the task.
Some years ago I implemented a health questionnaire to assess the fitness and health of the workforce. Some chaps were reluctant to be honest because they feared they may not be deemed fit for the job. Bearing in mind that they did not receive proper remuneration for being off work sick either.
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Posted By John Richards
Maybe he/she is concerned about security of information.
After all, many of these occupational health examinations also collect information not concerning the tests carried-out. And in the majority of companies, anyone with office access can read personal information easily. I was given a form to sign to "give my permission for tests" which stated that I was also giving those doing the testing (occH) the right to give interested third parties the information. Needless to say they got the requisite two fingers.
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Posted By Chris Packham
Section 7 of the Health and Safety at Work etc. Act 1974 is quite clear on this. I think that the only valid grounds for refusing would be if the employee could show that by complying he or she might suffer some damage to their health.
I hasten to add that this is my personal view and that I am not a lawyer!
Chris
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Posted By John Richards
With respect to the lung function test. All they have to do is have a cold.
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Posted By SteveD-M
S7(b) places a heavy duty on the employee to co-operate 'while at work as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with'
As previously stated he cannot be considered as fit for the job.
It isn't always necessary to use a sledge hammer to smash a nut - but I'm sure that just explaining the fact that technically he is in breach of his terms of employment may bring him round...
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Posted By SteveD-M
All things being equal you can dismiss on these grounds as the employment contract should make reference to 'obey reasonable and lawful orders'. Lawful being a requirement of parliament as well as an order given within the ambit of the employment contract. If the employee is asked to perform a function outside the employment contract which is unreasonable he/she can, in theory, refuse.
This is subject to protected whistle blowing.
Faccenda Chicken Ltd v Fowler 1986.
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Posted By clairel
You're all being a bit hard here.
What about finding out the reason why someone doesn't want to take the test. Many people have a real fear of any sort of tests being carried out - especially if it invloves needles - or may not understand the purpose of the tests and are worrid about the potential impact on their job.
I never recommend such an immediate harsh response. It might be they just need more support and information.
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Posted By Raymond Rapp
Good point Clair. I would hope that as h&s practitioners we would all consider the humanistic issues prior to going down the disciplinary route. It was implied in my posting in terms of mitigation.
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Posted By paulw71
Inform, educate, then discipline.
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Posted By B
This just occured to me so I thought I'd throw it in! You mention hearing tests in your original post - under the control of noise at work regs 2005 there is an obligation on certain employees (as defined in the regs to attend the health surveillance provided by their employers - Reg 9(5). Don't know if this is of use?
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Posted By Arran Linton - Smith Sorry the answer to this question falls way outside the scope of section 7 and our competence as safety practitioners. This is clearly an ethical medical issue and in theory the "patients exercise 'rights' to autonomy when providing consent only makes sense if there is a corresponding right to refuse". See: http://www.law.ed.ac.uk/...leinformation/weekthree/
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Posted By paulw71
Sorry but your wrong
The individual in question is not a patient, they are an employee.
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Posted By clairel
Reg 11(8) of COSHH disagrees with you Arran. Employees are require to take part in valid health surveillance provided by the employer.
Reg 9(1) of the Noise regs also requires the same.
So as a CMIOSH I consider it within my competency to advise a client that employees should attend health surveillance where required.
(However, I still think diplomacy is the key.)
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Posted By Arran Linton - Smith
The question is "are there any grounds where a colleague can decline occupational health surveillance". I agree that employees should attend health surveillance where required, however the grounds which the surveillance fails should be confidential unless the employee directly discusses this matter with their employer.
Consent and confidentiality are still critical.
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Posted By clairel
That wasn't what you said though was it Arran.
You said we weren't competent to give advice on this subject!
Might be nice if you withdrew that statement, which some of us object to.
Noone is talking about confidentiality issues here. We are talking about whether the employee has a rught to refuse. Which they don't (for valid health surveillance).
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Posted By Edward Shyer
To answer martins question, it all depends on the reasons for carrying out health surveillance as to whether or not a person has the right to refuse.
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Posted By paulw71
Edward
please do us the courtesy of reading the whole question.
It says where carried out in accordance with the relevant legislation.
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Posted By Edward Shyer
Paul w71.
please allow me the courtesy of not being drawn unhelpful comments.
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Posted By Martin Taylor
thanks all for the very positive response to the question - I think that the point I had missed that if an individual does decline to undergo surveillance then we should remove them from any duties that may risk their health - a process that may focus people to recognise the importance of the process in our overall health strategy
please keep the debate going
thanks
Martin
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Posted By paulw71
could you write that using grammar, then I may be able to understand it.
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Posted By Edward Shyer
apologies for the unusual typo.
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Posted By paulw71
Edward
Consider it forgotton, The matter is now closed.
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Posted By paulw71
Your welcome
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Posted By Edward Shyer
paul 71 thank you
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Posted By SteveD-M
oooeh! getting all political in here!
Me grammar is dead good - or is she in a home..?
Arran is right to bring up the issue of confidentiality. Most companies breach the Data Protection Act several times every day and smaller firms are the worst..However that in my experience is just a smoke screen.
Claire I don't think anyone is suggesting not to talk to this person, after all you are right it may be for other reasons rather than being awkward.
Good people skills are essential here...it is not what you say it is how you say it!!
However, in my experience laying the law down does help to cut to the chase and sort the issue out rather than it dragging on and individuals not being able to climb down from the stand they have taken.
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Posted By Edward Shyer
Even where health surveillance is carried out in compliance with the relevant legislation it would still need to be deemed a reasonable requirement for this surveillance to be carried out. However if an individual is of the opinion that the said surveillance would be detrimental to their health then, they are quite right to refuse to partake.
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Posted By paulw71
Edward
Where legislation specifies that specific health monitoring is required then the employee has a legal duty too comply.
I cannot envisage what manner of health monitoring would cause them harm, maybe you could advise me.
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Posted By clairel
Arran said we weren't competent to give advice on this because it was not related to H&S but ethical issues. He mentioned DPA in his next post after he had been proved to be wrong.
Ok, as an add on he could have mentioned the importance of DPA as well but he didn't - in his initial post he said none of us were competent to give advice on the subject of whether an employee could refuse health surveillance. That is wrong. IMO he should admit as much.
Love the contradiction by the way - preach about the importance of saying things in the right way and then say that you'd just cut to the chase and lay down the law because it's quicker! Do as I say not as I do!!
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Posted By Edward Shyer
Paul 71
It would be a case for the legal people to sort out if an individual refused.
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Posted By Arran Linton - Smith When it comes to health surveillance, then we are entering the field of Occupational Health where there are also significant medical ethical issues which significantly open up this question. As a very brief guide on this subject have a look at: http://en.wikipedia.org/wiki/Medical_ethics
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Posted By clairel
Aaran, and who said none of us are experts in occupational health??
But it is is irrelvant as it is COSHH that states that an employee must undergo health surveillance when exposed to certain substances. You do not need to be an occupational health expert to advise on that.
Medical ethical issues do not come into it when employees are equally bound by the requirements of COSHH.
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Posted By Jay Joshi
The mix of medical records and its associated legislation, ethics required of medical professionals, especially Occupational Health Physicians & Nurses, who have a duty of care to BOTH the employer and employee is a complex matter when applied to a simple question such as the "Refusal to undertake lung function testing".
Yes, in general terms, employees have to co-operate, under most regulations that have a requirement for health surveillance.
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Posted By Arran Linton - Smith
Clairel,
In a past life I used to undertaken medical surveillance as an Occupational Health Nurse. Whilst I feel that I know quite a bit about occupational health, I would never describe myself as being an expert.
Ethics were the framework in which I then practiced. If I failed to follow these I would have simply lost my job or worse been struck of the Nursing Register!
In practice if someone did not with to undertake any of the medical tests, after careful counselling, they simply failed to meet the set medical standard, however the details of how they failed were confidential.
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Posted By akm
Whilst this is an entertaining thread, I think the issue of medical ethics is misplaced and is just confusing matters.
A person may refuse medical treatment on the grounds that their body is being invaded. However, an employee (not a patient) has entered into a contract. Therefore, if an employee refuses to comply with the terms of the contract (and that includes legal compliance), then he/she is free to leave the service of the company. If he/she doesn't want to leave then, IMO and assuming persuasion hasn't changed things, the individual will need to be dismissed or moved to a different role.
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