Select Committee on Work and Pensions Written Evidence

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 evidence—on the Physical Agents Directive (Electromagnetic Fields) and the EEF's Managing Sickness Absence Toolkit—is 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 carried out.

  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 operation.


  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.

Optical Radiation

  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 situations including;

    —  TV Studio lights

    —  Operating theatre lights

    —  Vehicle headlights

    —  LASER pointers used by lecturers

    —  Data projectors

    —  LASER alignment tools used in construction & engineering

    —  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.

Sensible Risk

  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 and WBV;

    —  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 absence.

  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 Toolkit—talking 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 about were:

    —  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 change—including making the business case for paying for private treatment and increased investment in occupational health; and

    —  how to increase line manager confidence, competence and accountability—with a focus on carrying out return to work interviews, case management meetings, home visits, etc particularly for employees with stress, anxiety or depression.

  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 skill level.

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".



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.

Be proactive

    —  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 you need

    —  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 or prognosis.

    —  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 needs.

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?"

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