Additional Memorandum submitted by EEF
1. On 23 January 2008, EEF provided oral
evidence to the House of Commons Work and Pensions Select Committee
Inquiry in to the Health and Safety Commission and Executive.
During this session, two issues were raised which required EEF
to provide additional written evidence. This additional evidenceon
the Physical Agents Directive (Electromagnetic Fields) and the
EEF's Managing Sickness Absence Toolkitis included below.
2. The Physical Agents Directives have the
objective of preventing harmful exposure to workers from noise;
vibration; electromagnetic fields, and optical radiation. Their
development in the EU took more than a decade and despite this
extended period a coherent regulatory impact assessment was never
3. EEF does not oppose health and safety
legislation as a matter of course. Where the case for legislation
is proven and voluntary approaches are exhausted or inappropriate
our member companies would support the introduction of well designed
legislation that minimises the regulatory burden on business.
4. EEF believes that the Physical Agents
(Electro-Magnetic Fields) and the Physical Agents (Optical Radiation)
Directive are examples of EU legislation which are not based on
a proven need for regulation. Rather we believe they are based
on an inappropriate use of the so-called `precautionary principle'.
5. While the Work & Pensions Select
Committee is not examining the case for these EU instruments,
we believe they are relevant to a discussion of the efficacy of
the Health and Safety Executive and Commission. We believe that
the way the Physical Agents Directives were negotiated on behalf
of the UK Government by HSE illustrate some shortcomings in their
6. The Physical Agents Directive was originally
a draft document covering the four individual agents (noise, vibration,
EMF and optical radiation). It passed its first reading in this
form in the early 1990s. However, due to its complexity it failed
to progress beyond the first reading. In its original incarnation
the dossier was provided with a rudimentary impact assessment.
The authors of this original assessment commented that due to
time pressure their analysis was not adequately thorough.
7. The dossier then lay dormant until the
late 1990s when a new approach was adopted. The proposed directive
was separated into its four elements and these were then sequentially
negotiated; each directive dealing with a different agent but
with the legislative vehicle sharing a common design template.
8. All four directives were subsequently
adopted through co-decision. Throughout this process EEF highlighted
to officials and the relevant DWP Minister that there were problems
with much of this legislation. In essence the case for new or
further legislation had not been adequately demonstrated.
9. Electro-magnetic fields are a naturally
occurring phenomenon. They are also created by any system which
generates, conducts or uses electrical power. Whilst very large
fields are created in some industrial and medical processes there
is no evidence of harm resulting from these. The introduction
of the directive was justified by the European Commission on a
mis-application of the precautionary principle.
10. The concept of the "precautionary
principle" has its roots in EU Food Safety law. In short
it is to be used where the:
scientific data is insufficient,
inconclusive or uncertain; and
preliminary scientific evaluation
shows that potentially dangerous effects to the environment and
human, animal or plant health can reasonably be feared.
11. It is our contention that with EMF there
was an inappropriate use of the precautionary principle. The "potentially
dangerous" and "reasonable fear" test was not met.
EEF were not alone in this belief. Despite the absence of a competent
Regulatory Impact Assessment (RIA) the proposals were adopted.
During the negotiations HSE should be commended for carrying out
their own assessments. In the assessment on EMF, HSE comment;
" . . ... We are therefore unable to identify
any health and safety benefits from the Directive."
12. The Physical Agents (EMF Directive)
only gained prominence in the UK following a campaign by the Society
of Radiographers and an examination into the Directive by the
House of Commons Science and Technology Committee. However, EEF
had previously warned Ministers and officials, during the negotiations,
that there would be significant detrimental impacts on the continued
use of magnetic resonance imaging (MRI) and many other industrial
processes and security systems.
13. It is our contention that whilst HSE
officials understood the concerns of some stakeholders they were,
and still are, unable to develop policy that effectively deals
with these concerns.
14. EMF is a complex technical area and
the HSE has one specialist who works in this area. However, HSE
have failed to challenge specialist advice in a structured way.
Common sense has only begun to emerge in this area following the
negative publicity and Commons Select Committee enquiry which
lead HSE to address one aspect of this Directive (eg the impact
on MRI use).
15. In our experience, science and policy
development are dealt with in separate silos. HSE currently lacks
adequate checks and balances which would lead to the necessary
internal challenge which in turn, we believe, would have lead
to a more credible UK negotiating position on European directives.
16. The Physical Agents (EMF) directive
is now the subject of an amending directive which, if successful
will see the transposition delayed from 2008 until 2012. In this
period we are urging HSE to carry-out detailed research, as they
have done for MRI. This is necessary in order to establish what,
if any, problems will be created for manufacturers and other businesses.
17. The Physical Agents (Optical Radiation)
directive only covers exposure to artificial light. However, as
with the EMF Directive we believe it also lacks a credible regulatory
impact assessment. Our belief is that HSE failed to understand
the implications of this policy development, and did not respond
adequately to the concerns of stakeholders.
18. The Directive, which follows the pattern
of many other health and safety directives, sets exposure limits
to artificial light. It is the low-level of limit-values and lack
of the evidence of harm which are the principle concerns of EEF
and others. It was recently brought to our attention that exposure
limits are likely to be exceeded in a number of apparently innocuous
Operating theatre lights
LASER pointers used by lecturers
LASER alignment tools used in construction
Theatre stage lights, Etc
19. We accept that even if HSE had realised
the true impact of the directive and used it to inform the UK
negotiating position the outcome may still be the same as it is
today. However, as has been so effectively demonstrated with EMF
once the HSE did apply itself to researching the impact of one
aspect of that directive it was very influential and lead, in
our opinion, directly to the proposed reforms which are now underway.
20. Health and safety policy must be based
on good science which is interpreted into practical policy outcomes.
The Physical Agents Directive negotiations are a lesson in how
not to do it, including the:
Noise directive being negotiated
and implemented without a national or EU impact assessment considering
the efficacy or otherwise of the then existing Noise Directive;
Vibration directive introducing controls
for so-called whole-body vibration (WBV) despite the paucity of
evidence for their being a causal relationship between lower-back-pain
EMF directive has the potential to
curtail the use of medical security and manufacturing processes
without any identifiable improvement in health and safety; and
Optical Radiation directive will.
as already described. have wide-ranging negative consequences
for society with, we believe, no improvement in health and safety.
21. At the heart of the problem, as already
described, is the failure of HSE to use scientific opinion appropriately.
We believe that the co-location of technical and policy staff
at the Bootle headquarters is a step in the right direction. However,
co-location in itself will not solve the problem. It is necessary
for HSE to develop a robust internal challenge mechanism. Only
in this way can we be assured that the problems of the past will
not be repeated.
22. A persistent concern for our member
companies is the growing effect on productivity and morale of
sickness absence. Many face significant skill shortages and have
ageing populations. Our employers are also concerned about the
wider economic and social damage caused by long-term sickness
23. Therefore, for many companies the way
employee attendance is managed has become a key performance indicator.
But many factors have coalesced to make that job a real headache:
complex employment legislation; the threat of personal injury
claims, escalating costs of employers' liability insurance and
the way many GPs seem to take a narrow view of their patients'
interests (the `work and well-being' debate). Employers needed
a toolkit to help them navigate their way through this complexity.
24. At EEF we also passionately believe
that an approach to managing sick employees based on suspicion
and discipline is no longer sustainable (if it ever were). We
wanted to trigger a cultural change in the way some employers
relate to sick employees; this partly involves making the business
case for investment in occupational health and rehabilitation.
We wanted to produce something which would help companies to address
the challenges of sickness absence, and looked on a toolkit as
just such a route to doing so. We believe that, through our toolkit,
the related seminars and in-company training, we have laid the
foundations for such a change.
Producing the Toolkittalking to companies
25. We have produced a `one stop shop' to
make the task of managing sickness absence easier for employers.
We set ourselves bold objectives, namely to:
develop rules of thumb companies
could adopt rather than having to develop their own;
make difficult topics more manageable,
such as employees going off sick with stress during disciplinary
proceedings and helping companies assess who is covered by the
Disability Discrimination Act (DDA); and
produce tools that were legally compliant
yet practical and universally applicable.
26. Before writing the toolkit we met with
our target audience and asked them what they wanted. The Toolkit
is based on their priorities. EEF held focus groups with nearly
40 member companies, which included SMEs. Companies told us about
the barriers they found in managing absence proactively, and the
kinds of tools they felt would help them. The key themes we talked
challenging the sick note culture
and working effectively with GPs and Occupational Health Practitioners
(OHPs) We expected (and heard) a lot of criticism about
GPs. Surprisingly, many companies reported similar problems with
their OH advisors and this finding also shaped the Toolkit;
persuading senior management to
commit to changeincluding making the business case
for paying for private treatment and increased investment in occupational
how to increase line manager confidence,
competence and accountabilitywith a focus on carrying
out return to work interviews, case management meetings, home
visits, etc particularly for employees with stress, anxiety or
27. Based on the participants' priorities
as identified above, we produced nearly 50 tools (see Appendix
1 for the key messages from the tool kit). We believe that this
toolkit is innovative. Its strength and attraction lies in its
multi-disciplinary approach. Each of the chapters was co-written
by experts in employment law, HR, occupational health and a general
practitioner (GP), and areas of conflict were identified with
a practical approach formulated that blended their relevant expertise.
28. The document aims to do `what it says
on the tin'. It is pragmatic and it reflects the lessons we learned
from the insurance industry which has a vested interest in ensuring
employees return to work as quickly as possible at their highest
Reception to the Toolkit
29. There has been wide positive acclaim
for the toolkit from a number of quarters. At the Occupational
Health Awards 2007, the toolkit won in its category, to receive
the `Award for Absence Management', and received the accolade
of Overall Winner. Praising the EEF Toolkit, the judges said it
was great to see "such an unusual blend of expertise"
in the team responsible. "The group put together a pragmatic
and useful guide for employers that needs no further work from
the customer and is useable by any size of organisation,"
the judges' citation stated.
30. A similar positive endorsement came
from the established Journal of Occupational Medicine, which said:
"The toolkit is extremely comprehensive and thorough . .
. it couldn't make managing absence any easier... this is a truly
excellent piece of work... a true masterpiece... if you look after
an organisation with an attendance problem you should point them
in the direction of this document which for any employer provides
excellent value for money. If employers do use this toolkit and
we do what it says we should, our job will be easier and more
rewarding and their business will be better, both in terms of
its performance and respect for their employees."
31. Building on this, Dr John Hobson, Consultant
Occupational Physician at MPCG Ltd called the toolkit "essential
for the bookshelf". But a key endorsement comes from a typical
member company"excellent toolkit, I will certainly
review procedures against the material".
KEY MESSAGES OF THE TOOLKIT FOR BUSINESS
Train and equip your managers
The line manager is the most important
player in getting an employee back to work.
Invest in the soft skills managers
need and give them the tools they require to actively manage attendance
and you will reap the benefits.
Help them to understand how wide
is the category of employees who may be covered by the DDA and
what this means in practice.
Intervene as soon as an absence starts
to have the greatest chance of preventing unnecessary long-term
absence, even in stress, anxiety or depression cases.
Develop guidelines on when to seek
medical reports and train managers to anticipate how certain absences
might pan out, even difficult ones such as stress, anxiety or
depression or employees with personal injury (PI) claims.
There is no reason to treat an employee
absent with a pending PI claim any differently to an employee
who is absent for a non work-related reason.
Employers who have a high attendance
culture not only reap the business benefits of that but also manage
the commercial risk of dismissals and DDA-related litigation.
Making temporary adjustments to working
arrangements can be an effective investment in preventing many
absences relating to stress, anxiety or depression.
In actively managing employees back-to-work,
any temporary adjustments made need not become permanent.
Take control to obtain the medical information
Your first concern should be to establish
what it is about employees' conditions that is preventing them
returning to work and whether you can make any adjustments or
offer any help to overcome those barriers. This is more important
in the early stages of an absence than establishing their diagnosis
You do not need a dedicated on-site
OH service to manage attendance proactively but you do need a
modern business-led relationship with your OH supplier.
Your first contact with an employee's
GP must be effective. Ask the right questions and give them relevant
information to obtain medical reports that meet your business
Approach to employment law
It has become very difficult in practice for
employers to predict in advance of a dismissal who is or is not
covered by the DDA. The key question to ask is therefore: "if
this person were DDA protected, are there any adjustments it would
be reasonable for this business to make?"