Diana Kloss is always an inspiration and a prompt for reflection. A few years ago we fell to chatting about the paradox of the employer’s duty to protect health, but the worker’s right to keep aspects of their health confidential. It’s a thought I keep returning to. In parallel, I have had ongoing debates about the one size fits all approach to health standards which is at  the heart of our health and safety regulatory systems.

Consideration of the differential impacts of workplace hazards on asthma sufferers and neurological disorders. Looking at a very large health data set  this week, it became apparent that to be effective in managing a healthy workplace there needs to some resolution.

The Department of Business and Trade has signalled probable changes in the determination of cost-benefit analyses in the context of workplace health.  Their direction is likely to directly impact on population groups with specific health conditions.

Should the threshold of workplace health protection be set in order to ensure adequate protection of a minority of the workforce, whether it be gender or ability of health susceptibility? Or should it be proportionate, even if that creates exclusion or higher risks to certain populations.

Of course, this is not an academic question. HSE statistical evidence and employment tribunal reports are consistent with the notion that workplaces turn a blind eye or are oblivious to setting standards to protect those who may be most at risk from workplace hazards. The relationship between workplace health standards and equality legislation is still not a clear or easy one. How much harder is it to then put into consideration undeclared illness and vulnerability?

To a certain extent this conundrum is hangover from a forgotten era. Once upon a time the State was the major employer, but also the provider of health support and of social services. The cost benefit analysis was whether the State put effort into preventing someone being made ill by the workplace or whether it was cheaper to pick up the consequences through the NHS and the social security system. Ultimately, the State was omniscient and omni-benevolent.

However, the world has changed. The employer is invariably not the State, has duties to protect, but still only so far as practicable and to the extent of proportionate cost. This creates a different dynamic from the original proposition. The right to a “healthy” working environment is now the only employment right that depends on how wealthy the employer is.

Theoretically, if more workers become ill, then corporation tax will increase and so there is more resource to cover the costs to benefits and the NHS. However, this mechanism does not exist. In reality, it is likely that the majority of the businesses that create workplace health risks are amongst the businesses who collectively underpay A336bn in corporation tax , equivalent to a potential additional 15% of the total cost of the NHS.

Britain’s postwar consensus started breaking down almost 50 years ago, but we act, as a country as if the State should foot the bill to fix the people that business may not be willing or able to prevent from falling into ill-health. This, even though the fiscal deal with business that was wrapped in to National Insurance or corporation tax has long become a fiction.

So what is the solution and how does this relate to Diana’s dilemma? The answer is, to my mind, going to come down to one of two outcomes. Leave it to market or reform regulation.

Our current trajectory leaves matters increasingly to the market. The Government is likely to continue to roll back statutory duties, rely more upon the benevolence of employers and hope that by being less fussy about work and health we will create more jobs, more profit and more benevolence. This pre-WWII model, reminiscent of early industrialisation, would have the employers setting the standards for their peers on protecting workplace health.

However, this will not happen in a vacuum. If regulatory standards hit an even lower tide, it opens up opportunities for the lawyers. Employers owe a duty of care to prevent employee health being harmed or worsened by the workplace. These are legal standards set through the Common Law. Addressing the Common Law – judge made law, based on longstanding general legal principles, encouraged lawmakers to create our current regulatory standards that we currently have.

If regulatory standards fall, the common law of negligence will still be there. And in the law of negligence, you take the claimant as you find them. If they have a “thin skull” then you should have anticipated and protected them. Just because you are not subject to prosecution, does not mean you can’t be sued successfully. In the context of a negligence claim, the fact that a vulnerable person exercised their right to keep their medical condition confidential may be immaterial. In such a context, Diana’s dilemma disappears.

The return of the common lawyers to the field of workplace health is already happening with gusto. A large law firm runs an exposure database to help potential clients diarise their hazard exposure levels. It’s not a question of if they launch a class action, but when, how much for and how often it is repeated. Another law firm recruits health exposure victims in the way US lawyers started to do in the 90s around “toxic torts” that forced corporations to part with billions. Law firms can turn on press outrage and Parliamentary meetings in a way I have never before seen in my legal career.

The trajectory of workplace health regulation leads us all towards last century’s boom days for Personal Injury Litigation. There will be winners and losers, but the victim – the worker – will always be the loser; as well as the NHS, the taxpayer and Society.

There is, of course, another way. We accept that the world is different from when we came up with this model, and learn the lesson I learnt in Environmental Law Regulation. The polluter pays principle was always hard in hard cases, but it made everything else pretty clear cut.

We can cut out the complications and move to a simple economic proposition. The employer has an absolute duty to prevent his workers from being made ill through work and if they do become ill, the employer (or their insurers) should pay for cost of the consequences.

This is neither a radical, new, or untrusted idea. In varied forms, it is found at the heart of systems in the United States and in also in the Scandinavian countries. It is clear and it is achievable.

The contract of employment exchanges skills, labour, control, loyalty, creativity and opportunity for pay and reward. No part of that can ethically ever also be contracting out longevity, freedom from pain, suffering or limits to human dignity. The sacrifice of those things are features of bondage, servitude and slavery, not of employment.

As health professionals, ethical practitioners or just decent human beings, we need to be clear about what the deal on workplace health really should be. It’s not politics, it’s economics. Either the employer pays or everyone  pays.