Occupational Medical Practice).
2
The Legal Status and Liability of the OH Professional
Occupational health professionals should be clear about whether they are classified as employees, workers or self employed contractors, as that has important legal consequences.
An occupational health professional can be convicted of a crime under the Health and Safety at Work Act 1974, in addition to the employer, or may be solely responsible, if a failure of reasonable care leads to employees and others being put at risk.
The Court of Appeal has held that an occupational health professional does not owe a duty of care to a worker pre‐employment, but it is likely that this applies only to economic loss and not to physical harm. A duty of care extending to both physical and economic harm is owed to workers in employment.
Occupational health professionals always owe a legal and ethical duty of confidence to those who confide in them.
Although an occupational health professional cannot dictate to management how they should protect the workforce, they can and should give advice and warn of hazards to health and safety and may be liable if they negligently fail to do so.
The duty to obtain informed consent to medical procedures requires that the patient should be given the information that a reasonable person in that particular patient’s circumstances would want to know.
An occupational health professional can be held liable for a breach of the Equality Act if a disabled person is refused a job because of a negative assessment during which reasonable adjustments were not adequately considered.
Health care workers infected with HIV or Hepatitis B, but with a low viral load, may be permitted to perform exposure prone procedures but must be under the regular supervision of a consultant occupational physician and must agree to their names being included in a confidential register.
2.1 Servants and independent contractors (and workers)
In the medical and nursing professions there is a diversity of outlets for professional skills. In examining the status of the occupational health (OH) doctor and nurse, it is necessary first to analyse the various types of occupational health services which exist today. The main distinction to be made is between the OH service which is set up ‘in house’ by the employer, and that which is bought in from an outside consultant who is in business on his own account. Most OH professionals who work full time for one employer are his ‘servants’ (employees) in the legal sense, whereas independent OH consultants are usually what lawyers term ‘independent contractors’. A further complication is where, for example, a nurse is employed by a company like Medigold, which provides OH services to employers, but is lent out to Medigold’s customers. As regards Medigold, the nurse is a servant, but when she is sent to a company to give advice or examinations, she is an independent contractor of that company.
The importance of all this is that the law divides contracts to sell one’s labour to another into contracts of service and contracts for services. A junior hospital doctor or a nurse in an NHS hospital is a servant employed by the NHS trust under a contract of service. A general practitioner (GP) in the NHS is a self‐employed independent contractor employed in England by a Clinical Commissioning Group (Health and Social Care Act 2012) under a contract for services. As the administration of health care is devolved, there are different arrangements in Scotland, Wales and Northern Ireland, but GPs are independent contractors in all the devolved administrations. This is not merely an antiquated conundrum for lawyers: it has vital consequences in practice. The employer is liable vicariously in the civil law for the negligence of his servant, but not in general of his independent contractor. Many statutory employment protection rights like the right not to be unfairly dismissed are given only to those employed under a contract of service. The employee has PAYE and National Insurance contributions deducted from his wages by his employer; not so the self‐employed independent contractor. The self‐employed have the benefit of a more generous expenses allowance to set against tax, but they cannot claim unemployment benefit, statutory redundancy payments or industrial injuries disablement pensions.
How can an individual determine into which category he falls? The courts have laid down various tests, but none is conclusive. It is instructive to see how the parties themselves have labelled their relationship, but courts have sometimes refused to accept this, as in one case where a manual labourer on a building site was told by the foreman that he was ‘on the lump’ and would not have tax and National Insurance contributions deducted. When he later had an accident on the site, the court held that he was, after all, an employee and was therefore covered by the Construction (Working Places) Regulations 1966 which did not protect self‐employed persons (Ferguson v. John Dawson (1976)). In a later case, the court held that a semi‐skilled worker in a factory, who had for several years with his agreement been classified as self‐employed, was in law an employee. As an employee he could thus complain to an industrial tribunal that he had been unfairly dismissed; the court sent the papers to the Inland Revenue so that back taxes could be collected (Young and Woods v. West (1980)). What the law looks for is evidence about the degree of dependence of the employed person. If he is controlled in the performance of his work, is an integral part of the employer’s organisation, uses tools and equipment supplied by his employer and cannot provide a substitute to do his job without his employer’s permission, he is likely to be an employee under a contract of service. The number of hours worked is not conclusive: many part‐time workers are servants rather than independent contractors.
The British Medical Association (BMA) advises that the doctor should be clear whether he is being offered a contract of service or one for services, and that legal advice should be sought on the wording of any draft contract. Strictly speaking, a contract does not need to be in writing to be legally enforceable, but it is easier to prove what has been agreed if there is written evidence. An employer must give a written statement of the basic terms of a contract of employment to an employee at the time he starts work and from April 2020 this is extended to workers, but it does not apply to self‐employed contractors. It is unlikely that the courts would accept that a full‐time doctor or nurse working in‐house was anything other than an employee. A nurse working part‐time for one company only would probably be in a similar position, but a physician or nurse providing a few hours a week on a sessional basis, especially if he or she visits more than one company, probably falls into the self‐employed category.
In Westminster City Council v. Shah (1985), the Employment Appeal Tribunal upheld the decision of an industrial tribunal that a GP who acted as a locum OH physician for the Council for five morning sessions a week was directly employed by the Council. His normal hours of work were fixed, he was paid a fixed fee for each session, irrespective of the amount of work involved, and all his work was done on the Council’s premises as they required. On the other hand he was not subject to their disciplinary procedures, he received no holiday pay and he was assessed (wrongly, in the tribunal’s opinion) to income tax under Schedule D. The court emphasised that each case had to be looked at on its facts ‘in the round’.
Certainty in this area of the law seems to be a will o’ the wisp in whose pursuit there are always dangers.
By contrast, in Kapfunde v. Abbey National (1998), a GP acted part‐time as a consultant for Abbey National. She assessed pre‐employment questionnaires and gave other advice, including undertaking medical examinations of employees and job applicants. She could perform the examinations herself, or employ a locum. She had complete discretion over the way in which she performed any responsibility, including the choice of contractors to provide external blood tests and X‐ray services and payment for them. She sometimes used her own premises and always her own medical bag. She managed her own tax and national insurance affairs. The judge held that she was an independent contractor, not an employee, and that the employer was not therefore vicariously liable for her. The factor which swung the decision was probably that