The issue of employee wellbeing and good physical and mental health is of paramount importance in the modern workplace. In recent times, following on from the Stevenson/Farmer Review of Mental Health and Employers, the government has committed to implementing a range of initiatives to better support employees, including setting out proposals in its policy paper response to the Stevenson/Farmer Review: Improving Lives: The Future of Work, Health and Disability. The government is also committed to carrying out its ambitious plan to implement the biggest upgrade to workers’ rights in over 20 years in response to the Taylor Review of Modern Working Practices.
Now, in its publication of a new consultation paper, the government has announced that it must work “hand-in-hand with employers” to reduce ill health-related job loss, whilst stating that, “there is a case for employers to do more to support their employees who are managing health conditions or who are experiencing a period of sickness absence”.
One significant proposal to which employers should pay attention is the introduction of a new right to request workplace modifications on health grounds for employees who do not meet the Equality Act 2010 definition of being a “disabled person”. This would potentially significantly widen employers’ obligations in this regard, albeit it is suggested that a request could be refused on legitimate business grounds. The government is also seeking views on eligibility for this right, including whether it should be linked to long-term absence (e.g of 4 weeks or more) or, instead, to return to work from a period of sickness absence or, wider still, to simply a demonstrable need for a workplace modification on health grounds.
The government also proposes a Code of Practice could sit alongside this new right to support employers and employees to agree any modifications required. Activities or modifications which the government highlights as potentially reasonable for employers to undertake include:
- Having a conversation about the employee’s need for a modification;
- Keeping a written record of conversations between employer and employee;
- Seeking expert advice from occupational health services to support decision making; and
- Modifications of working hours/pattern, working tasks/duties, or to the physical environment.
The government proposes that employees who feel that their request for a modification has been unfairly refused, or due process has not been followed, could bring a claim in the employment tribunal.
Other proposals of note for employers are:
- Strengthening statutory guidance to support employers to take early, sustained and proportionate steps to support a sick employee to return to work before that employee can be fairly dismissed on the grounds of ill health;
- Extending Statutory Sick Pay (SSP) to those who earn less that the Lower Earnings Limit (currently £118 per week);
- Reforming SSP to allow for greater flexibility in returning to work following sickness absence;
- Imposing fines on employers who fail to pay SSP where it is due;
- Enforcing SSP through a new single, labour market enforcement body;
- Requiring employers to automatically report sickness absence through their payroll system;
- Improving the provision of advice and information to support management of health in the workplace and encourage better informed purchasing of expert led advice;
- Reducing the costs for SMEs of purchasing occupational health services.
The consultation closes on 7 October 2019. For now, employers need to keep the proposals on their radar and consider what impact they may have on their business in the future as part of any strategy planning. Although we shall have to wait and see what the final obligations for employers are, this latest consultation paper serves to confirm that the government’s desire to significantly increase worker rights is here to stay and employers should maintain a keen watching brief in this regard.