From the end of 2014, the Government will start to roll out a new, pro-active approach to sickness absence, the centre-piece of which will be an independent health assessment service.
The Health and Work Service (the Service), will provide occupational health (OH) advice and support for employees, employers and GPs. Its specific objective will be to help people with a health condition stay in or return to work. It plans to facilitate this through OH assessment and follow-up, together with a telephone and on-line advice service, accessible to employers, employees and GPs.
Much of the detail of how the new scheme will operate in practice is awaited, along with Government Guidance. To a large extent, we can only speculate upon its likely impact for employers. To aid forward thinking and planning, we have set out below some of the more common questions raised by employers so far.
Q: As a small employer, covering any sickness absence is difficult. How might the new regime help my business in practical terms?
A: The rationale behind the new scheme is to motivate both employers and employees to review their circumstances once a health issue arises.
Once the Service is up and running, you will be able to contact helpline support by phone or e-mail and seek advice regarding employee sickness and absence. Access to health assessment advisers and assessment centres is to be rolled out regionally in due course. Although open to all employers, the helpline service is expected to be of greatest benefit to employers, such as yourselves, which lack their own OH advisers (circa 10% of small-medium businesses).
Just as important as helpline support, however, a referral for health assessment after just 4 weeks’ absence (or less in some cases), will mark a departure from current practice by encouraging an employee to focus upon a return to work and ways in which this might be facilitated, rather than perceiving absence from the workplace as the only option.
Assuming an employee has submitted fit notes, you will know they are in contact with a GP. It may well be, therefore, that if the GP anticipates further absence he or she will take the initiative and refer the employee to the Service for assessment. If this does not happen, there will be mechanism for you to make a referral, as employer.
The Service will be delivered by OH professionals who will look beyond the primary health condition or, 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).
A key advantage of the new approach for employers is that introducing an independent third party should open up channels of communication with employees, especially in circumstances where they might not otherwise be forthcoming. Understanding the reasons for absence early on will allow you to explore reasonable alternatives or make a more informed assessment of your business needs. For example, if the OH assessment identifies the cause of an employee’s absence to be stress resulting from caring for an ill mother at home - something which they hadn’t revealed previously - the Service might steer them towards organisations which could help them on a practical level. In turn, as the employer, you might consider whether shorter hours for a few weeks would be feasible for the business (and less costly than hiring a temp) and might enable the employee to commence a gradual return. If, on the other hand, the assessment reveals the absence to be more complicated and likely to be prolonged, you might need to look at other options both as regards the employee and business planning.
Q: Is participation in the new scheme compulsory?
However, employees who decline to engage with the new system risk suspension of further fit notes, potentially jeopardising sick pay and other entitlements. Outside of the scheme, an employer may also consider whether it amounts unreasonable conduct by the employee and could count against them in terms of their continued employment, depending upon nature and degree.
Less clear is whether employers who fail to participate will face any penalties. Government press comments suggest employer-participation will be voluntary, the likely costs savings in terms of recruitment and training of replacement staff providing sufficient incentive. However, as outlined above, there must be increased risk that steps identified in the Return to Work Plan may constitute reasonable adjustments. This will increase legal pressure on employers to at least consider them, in order to avoid disability discrimination or unfair dismissal claims should they proceed to dismiss for absence without considering the recommendations.
On a positive note, there are to be tax advantages 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 is in addition to existing tax relief on Employee Assistance Programmes. So, for example, in a recent case in which the Claimant was found to be suffering a disability in the form of stress and anxiety, the Tribunal found a series of counselling sessions to be a reasonable adjustment within the statutory requirements. The future tax changes would enable the employer to claim a contribution to its costs in providing access to that support.
Q: We currently retain the services of external OH consultants. Will there be any need for us to incur this expense going forwards, if we are to have access to a free advice service?
A: This will depend upon the nature and extent of your current use of OH support. Inevitably, the degree of support offered via a free helpline service will not be as great or as involved or tailored as that provided by retained consultants, offering a bespoke service. Succinct and specific queries will be able to be dealt with via the helpline but this will not extend to more comprehensive advice as regards the management of a particular employee’s health issues or circumstances.
Unreasonable reliance upon the contents of a Return to Work Plan even if based on the new service and advice may be criticised where it is appropriate to look at the wider circumstances and factors. Similar issues arise in the context of helpline advice which, by definition, will be limited by the enquiry. Accordingly, advice provided by the Service will inevitably be of less probative value than a full and comprehensive report.
Timing could also be an issue. As a free service, it is not yet known what helpline resource will be available –or indeed, needed to meet demand. Accordingly, whilst the Service anticipates out of hours queries will be responded to within one working day of receipt, as a free service, employers will not have any influence or control over access.
Q: The proposed referral time for accessing the assessment service is after 4 weeks’ absence. Must these be consecutive weeks?
A: Research commissioned by the Government suggests that a key turning point in sickness absence arises after 4 weeks’ absence and from this point employees become more likely to enter into long term absence or to fall out of employment altogether.
Although the current proposals suggest that consecutive weeks are the anticipate trigger for referral, it is also clear that the Service can become involved at any time where absence is likely to last 4 weeks or more. Where an employee may have had a series of absences, therefore, it seems highly likely that employees would be accepted for assessment upon referral by a GP, or possibly the employer.
2. Termination of Employment
Q: Will the new regime affect our current dismissal process?
A: Potentially, yes.
The process of health assessment itself is expected to be quick and efficient. The system is the subject of a pilot, currently, but the intention is that initial assessment by telephone will take place within 2 days of the employee’s referral to the Service, with follow-up and indication of return date provided within that same week.
Any effect on the timing of a decision to dismiss, or the process involved, is accordingly likely to stem from the recommendations of the Service following health assessment and not from the assessment process itself. These will be set out in a Return to Work Plan (normally presented as a timetable), containing specific advice and recommendations to facilitate the employee’s return to work within a specified time frame.
Employers will need to be wary of relying upon health information or timescales set out in the Return to Work Plan to justify dismissal. Given the process and the fact that any health assessment is expected to be brief, focus instead being on facilitating a return to work, these are likely to be viewed by a tribunal as guide lines only, not definitive. As in all cases currently, where dismissal is contemplated (whether or not sickness related) caution must be exercised. To be lawful, a dismissal for health reasons must be for capability and, moreover, must be fair in all the circumstances. Even if the findings and recommendations of the Service prolong your process, rejecting them without proper consideration (and being to demonstrate such thought-process) could lead to a successful claim of unfair dismissal or disability discrimination in the case of a long term and serious illness.
A positive aspect of the new regime is that you are likely to be better-informed as to an employee’s health and ability to work, perhaps earlier in the absence, which will allow for greater consideration of the options for the business, as well as the employee.
However, that knowledge also has the potential to put you on notice of issues of which you might not otherwise have been aware. Dismissal must be a reasonable sanction in the circumstances, based on what a “reasonable employer” might do. The Service will not offer a comprehensive medical review, upon which employers can necessarily rely in reaching such decisions –not least since this is not the primary focus of the Service. To effect a fair dismissal, therefore, employers are likely to require supplemental medical evidence. In contrast, since the focus of the Service will be getting employees back in to work (or staying in work) their conclusions in that regard are likely to present an informed and credible assessment of the broader circumstances. If the Service has recommended certain steps which enable the employee to return to work, or return to work sooner, it is highly likely that an employment tribunal would expect a “reasonable employer” to try to accommodate those changes before proceeding to dismiss. This also means, of course, that employees will be expected to act reasonably in terms of their co-operation.
Q: What if the employee doesn’t want to come back –or we don’t want them back?
A: 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.
It may be that 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.
It is nonetheless risky for employers to accept such an assessment by the Service at face value. A proper process, including medical opinion, will normally be required before dismissal in such circumstances will be “reasonable”. Dialogue with the employee could prove particularly beneficial in reaching agreement but employers need to be aware that the legislation relating to protected conversations will not apply to any candid discussions about termination of employment, were allegations of discrimination to be raised subsequently.
The Service retains a discretion as to who takes responsibility for the provision of future fit notes once an employee enters the assessment process. If the employee refuses to engage with the Service or refuses to co-operate with the recommendations it makes to facilitate a return to work, the Service may therefore suspend future fit notes, which could jeopardise employee entitlement to sick pay and benefits. From the employer’s perspective, depending upon the conduct involved, it is possible that the employee’s refusal may amount to unreasonable conduct justifying disciplinary action or even dismissal.
The employer does not appear to be exposed to any direct penalty in the context of the new regime if it declines to accept the recommendations of the Service or the employee’s return. However, there are clear risks in adopting that stance, in terms of potential unfair dismissal and/or discrimination. As outlined above, participation in the new regime is not compulsory. Even so, unreasonable refusal to accept reasonable proposals which might facilitate the employee’s return could support a claim of unfair dismissal (actual or constructive). Furthermore, whilst we do not yet know how tribunals will interpret the aggravated element to impose an additional financial penalty on employers (a new tribunal power which was introduced on 6 April 2014), it is conceivable that flagrant unreasonableness or intransigence in this context could lead employees to seek such an order.
3. Operation of the Service
Q: I understand that the health assessments conducted by the Service will be undertaken by OH professionals, not doctors, and will largely be conducted over the phone. To what extent can we rely on their conclusions, as an employer?
A: For the time being at least, you are right to be cautious.
The status of any assessment or recommendation by the Service is not yet understood fully. The Government has been keen to emphasise that the OH practitioners will provide a high quality advice and assessment service. It will be run by healthcare professionals who have an OH qualification, OH experience, or are able to demonstrate experience and skills in the field and who hold appropriate OH accreditation. However, it is important to note that the focus of the Service is upon facilitating a return to work, not addressing any underlying health condition or ongoing clinical care. Any assessment or Return to Work Plan accordingly needs to be viewed by employers in that light, not as a definitive assessment of health.
A common problem for employers is that information received from an employee’s GP contradicts that received from an OH professional. This issue could well be compounded by the brief interaction anticipated between the employee and the Service, which will have wider scope than looking at primary health conditions and may be conducted by telephone conversation only. Where contradictory evidence exists regarding the ability to work, employers should always view all available evidence in the round before any decisions regarding employment are taken, whether relating to the continuation of the relationship or any steps needed to facilitate a return. As a result, recommendations contained in the Return to Work Plan should be treated as advisory only, not conclusive.
In addition to legal obligations to treat employees fairly and not discriminate, employers are also under a duty to protect the health and safety of individual employees and their colleagues. Accordingly, the outcome of the Return to Work Plan should not be to place undue pressure upon an employee to return to work early and risk exacerbating a health problem. One would hope that risk will be minimal but employers who are heavy-handed in their pursuit of a Return to Work Plan, or simply implement a plan which proves to be too ambitious, could find themselves exposed to personal injury or health and safety claims for which they, not the Service, will be liable. This could also have potential insurance implications, so it will be advisable to keep insurers apprised of any such issues.
Q: What if the Return to Work Plan makes recommendations the business cannot accommodate or afford?
A: 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, whilst the Plan is pursued. The Service will monitor this and may opt to take over responsibility for issuing fit notes in the future or allow the employee’s medical practitioner to do so.
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.
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. Any adjustment must be one which it is reasonable for an employer to make. Whilst cost will be a relevant factor, a tribunal will take into account the employer’s resources generally and issues such as overall cost-effectiveness - for example, compared with the costs of recruiting and training a new member of staff.
A recent example arose in the EAT where psychiatric counselling was found to be a reasonable adjustment for the employer to make 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.
Q: How will the Service interact with our in-house OH services?
A: Only 10% of small to medium-sized employers are thought to engage OH support. 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 you, as employer, to effect the necessary steps in consultation with your OH team.
What is less clear is how amenable the Service will be to accepting opposing methodology or opinions put forward by your team. What if the conclusions of the Service are that a return to work is feasible and your OH team advises otherwise? In practice, it could be that to direct resource to small and medium-sized employers, where it is most needed, the Service will be prepared to largely delegate its function and would accept the conclusions of your own team. In the event of a conflict of opinion, however, time and resource suggests a more in-depth report from a dedicated in-house OH professional would carry more weight than the views of the Service. Even so, recent cases have served as a reminder that employers cannot blindly accept the opinions of OH advisers where there is credible evidence to the contrary. Each case should accordingly be reviewed and assessed on the balance of evidence.