From late 2014 a new Government funded service will launch to help people with a health condition return to work. The recently published specification throws up a number of issues of concern to employers.

Background

The origin of new Health and Work Service to be launched later this year can be traced to the 2008 report “Working for a Healthier Tomorrow”, commissioned by the last Labour Government. The report recognised the crucial importance of work for physical and psychological well-being and made two main groups of recommendations.  The first led to the creation of the fit-note system, introduced in April 2010. The second called for the improvement of occupational health advice to employers. That idea was taken up by the Coalition Government, which commissioned a further review, published in late 2011 (Health at Work – an independent review of sickness absence). The Health and Work service emerged as one of the review’s main proposals.

How will the Health and Work Service operate?

The responsibility GPs currently have to assess their patients’ long-term capability for work will be passed to a new occupational health service. The specification, published over the Summer, makes it clear that in most cases a referral should be made after four weeks’ continuous absence. GPs will need the employee’s consent to make the referral. In some circumstances employers will be able to make a referral themselves. 

The new service would then make an assessment (typically over the telephone) and produce a return to work plan. That will take the place of a fit note. The plan will be shared with the employer, though it is possible that some sensitive medical details could be held back. GPs will need to produce a final fit note to cover the assessment period (typically two weeks). 

The service will also offer advice over the telephone and via its website to employers, employees and GPs. It will be run by Health Management Limited.

Relationship with existing occupational health provision

The specification states that a case manager will be appointed to support each employee through the assessment period. They will be responsible for recognising when consultation with the employer is required. The aim of the service is to complement rather than duplicate existing services, so case managers are likely to want to consult with in-house occupational services before finalising a plan, and in many cases may be prepared to endorse their proposals.

Can a return work plan be rejected?

Guidance issued under the current fit-note regime makes it clear that employers are encouraged – but not obliged – to accept a GP’s suggestions for temporary adjustments to the employee’s duties or a phased return to work. It is likely that similar flexibility will be shown in relation to return to work plans, but since they will be issued by a professional occupational health service, the degree of arm-twisting is likely to be higher. 

As with the current system, it remains the employer’s ultimate responsibility to ensure that the employer is fit for work and to assess whether any proposed adjustments are feasible. In most cases the return to work plan will be sufficient evidence of fitness for work, but as with fit-notes there may be occasions where an employer will need to conduct its own assessment. It is hoped that guidance once published will offer best practice pointers to cover this situation.   

What impact will the new regime have on absence management?

An employer’s approach to absence management already needs to reflect a considerable body of case law and best practice guidance. Underpinning this are two core legal obligations – the law of unfair dismissal and employers’ duties under the Equality Act, particularly in relation to people with disabilities. The application of the general principles set out in these provisions to the new regime is likely to require careful thought. 

At this stage we do not have more than a bare outline of the Health and Work Service. But that is enough to make some initial observations:

  • Employers will need to review their contracts and procedures (particularly sickness absence and redeployment policies along with any capability procedure) to ensure they reflect the new regime. Among other things, they will need to consider whether current provisions about employee consent in relation to the sharing of medical information are adequate.
  • Employers may want to consider making it an express requirement that any return to work plan produced by the new service is shared with the employer.
  • The relatively early point at which the service will take over from GPs (ie four weeks into any period of absence) may encourage employers to engage with an absent employee rather earlier than is currently the case.
  • On the other hand, it is probable that in most circumstances employers will be expected to wait for a return to work plan before instituting capability proceedings.
  • It may be appropriate to review the triggers in a sickness absence policy to ensure that time is allowed for any return to work plan to be implemented.
  • An employer will need to be prepared to justify any decision to reject or modify the return to work plan. For disabled employees, it is likely to stand as a pretty persuasive list of the steps that could be taken to comply with the duty to make reasonable adjustments.
  • Failure to accept, or at least engage with, a return to work plan is bound to be a factor that an employment tribunal considers when assessing the fairness of a dismissal for capability reasons. Alternatively of course, if a return to work plan is implemented and is unsuccessful, that may be taken as evidence that the employee will not be able to return successfully.