With latest 2014 figures suggesting that workers in the UK take in excess of 130 million days sickness absence per year, it appears this may be the year in which the Government finally follows through with long-discussed reforms to significantly reduce absence levels.
The first step towards change takes place next month, with the ending of the Percentage Threshold Scheme from 6 April 2014, a scheme which allows employers with higher than average levels of sickness absence to recover a percentage of statutory sick pay from HMRC.
However, the centre-piece of a new “pro-active” regime is an independent health assessment service, which is expected to be operational from the end of 2014. In cost and aspiration, the implications of this new service are significant. For employers too, the changes look set to herald a new era, placing far greater emphasis and, moreover, responsibility, on the employer to facilitate a return to work for those on sick leave.
How will the new health and work assessment and advisory service work?
A new service, the Health and Work Service (the Service), will provide occupational health (OH) advice and support for employees, employers and GPs, to help people with a health condition to stay in or return to work.
The Service will have three principal roles:
- Assessment – to identify barriers to the individual returning to work;
- Case Management; and
- Advice – accessible to employers, employees and GPs by phone or online.
The assessment process is likely to involve the following stages:
Please click here to view stages.
Whilst one might assume financing the cost of debt-counselling is difficult to link to employment or to a reasonable adjustment to counter disability, for the purposes of the Equality Act 2010, employers should be alert to case law developments in this area. The EAT has recently concluded that psychiatric counselling was a reasonable adjustment under the statutory provisions (Crofts Vets Limited v Butcher). The issue was not found to be the funding of such counselling per se but payment for a specific form of support to enable the Claimant to return to work.
The primary referral route for an assessment will be via the employee’s GP, providing the employee does not fall within one of the limited exceptions. In certain circumstances, employers will also be able to make referrals. In any event, all referrals will require informed consent by the employee.
The critical trigger point for referral is where the employee has been absent from work for a period of four weeks but it can arise earlier, if the employee is expected to be absent for that period or longer or if earlier referral is likely to expedite a return to work, in the view of the GP.
The Service will be delivered by OH professionals who will look beyond the primary health condition or, indeed, work-specific issues, to non-health and non-work issues, where these may be causing or exacerbating ill-health (such as anxiety and stress, for example).
Initial assessment is likely to be conducted by telephone, to identify what is preventing the employee from returning to work and where support might be targeted. A face-to-face meeting will then be arranged with an appropriate OH adviser, if necessary.
Outcome of Assessment
Following assessment, the Service will provide a Return to Work Plan (normally presented as a timetable), containing specific advice and recommendations to facilitate the employee’s return to work as soon as practicable. The Plan will replace GP fit notes, temporarily.
In the absence of awaited Government Guidance, it is too early to say, definitively, what recommendations a Return to Work Plan might make. However, based upon the multi-factoral approach advocated for the Service and the intended provision of support beyond workplace issues, one can expect the recommendations to be broad. For example, a case study provided in the Government Response to Consultation, concerning a fictitious employee suffering stress and anxiety, suggests steps such as a gradual return to work, a change of work activities and access to therapy and debt-counselling.
Much of the fine detail of how the new scheme will operate is awaited, along with Government Guidance.
Whilst it is clear that employees who fail to engage with the Service will not be issued with subsequent fit notes, potentially jeopardising entitlement to sick pay and other benefits, whether employers will face any penalties is less clear. Presumably not, if one takes the Government’s earlier press comments at face value in terms of focus upon help and support, not sanction. The likely costs savings themselves – along with the problems of recruiting and training new staff to replace those leaving due to ill-health - may well prove sufficient incentive for employers to review seriously the Return to Work Plan. However, there must surely be increased risk also that steps identified in the Return to Work Plan might, in many instances, constitute reasonable adjustments, thereby increasing legal pressure on employers to at least consider them, if they are to avoid disability discrimination.
There are also some tax changes arising in the context of the new scheme. Existing tax relief on Employee Assistance Programmes is being retained. From April 2014, there are additional tax benefits available for employer expenditure upon medical treatment and vocational rehabilitation, in so far as it aims to keep employees in work or expedite their return from sick leave. This coincides with the withdrawal of the Percentage Threshold Scheme.
How will the Service interact with employer OH services?
Once up and running, the Service is intended to complement, not duplicate, OH provision already offered by the employer. Accordingly, where an employer already retains OH provision, the Service will look to work with that provider. In many cases, this may result in the Service providing no more than initial recommendations and a follow-up role, leaving the employer and OH provider to effect the necessary steps.
The interaction between different OH advisers will be less relevant to small to medium-sized employers, of whom only 10% are thought to engage OH support. For larger organisations, however, the extent to which the Service will work with existing OH providers remains to be seen. Will they, for example, accept opposing methodology or be prepared to challenge it? Or, in order to direct resource to small to medium-sized employers, where it is most needed, will the Service be prepared to largely delegate its function.
What if employees are unable to return to work?
The Government Consultation Response recognises that not all employees who are absent due to ill-health will be capable of returning to work or, indeed, all employers willing or able to wait for them to do so.
Where a return to work is not possible, the Service will have a role as part of its case management function, to identify this potential outcome and the sort of alternative work the employee could undertake for a different employer. They will then refer the employee to a new internet job-matching service. It is not clear whether any penalty – in the form of loss of sick pay or benefits will arise, were employees not to pursue such opportunities.
Focus on Public Sector
Public sector organisations will provide particular focus for the new scheme, the Government recognising that, despite a downward trend, absence rates in the sector remain higher than those in private sector and that success in absence management varies considerably.
As a result, all employers in the public sector will be obliged to publish absence levels in future and associated costs to the taxpayer. The Government has also pledged to increase accountability, with a view to engendering widespread good practice.