With it being estimated that 960,000 employees are on long-term sickness absences, the government is implementing a new scheme aimed at assisting sick employees back into work and helping employers deal with absent staff.
With 130 million working days being lost at a cost of £9bn to businesses, the scheme should be welcomed by employers. But will it really make a positive difference or will it put more obstacles in the way of employers managing their business?
From the end of 2014, the government will start to roll out a new, pro-active approach to sickness absence. The Health and Work 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 to stay in or return to work. It plans to facilitate this through OH assessment and follow-up, together with a telephone and online advice service, accessible to employers, employees and GPs.
An aid for businesses
The rationale behind the new scheme is to motivate both employers and employees to review their circumstances once a health issue arises.
Employers will be able to contact a support helpline by phone or email and seek advice regarding employee sickness and absence. Although open to all employers, the helpline service is expected to be of greatest benefit to small or medium-sized businesses.
They will be able to refer an absent employee for a health assessment after just four weeks (even less in some cases). This should encourage an employee to focus on returning to work and ways this might be facilitated.
The service will be delivered by occupational health professionals who, as independent third parties, will be expected to look beyond the employee’s primary health condition and explore and understand all the reasons that the employee considers is making them unable to return to work.
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Understanding the reasons for absence early on will allow employers to explore alternatives or make a more informed assessment of their 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 parent at home, the service might steer them towards organisations which could provide help. In turn, the employer 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, the employer might need to look at other options regarding both the employee and business planning.
However, whether the new regime will help businesses find solutions to the problems caused by absent sick employees will rest heavily on the quality of service provided by the OH professional assigned to deal with the absent employee.
No compulsion, but…
Participation in the scheme is not compulsory. However, employees who refuse to engage with the new system risk not being provided with further fit notes from their GPs signing them off work. It may also jeopardise their right to sick pay, as well as other entitlements, and may place them at risk of disciplinary action for unreasonable conduct.
It is not compulsory for businesses to participate in the new scheme either. That said, the government’s recent comments in the press suggest that anticipated savings, in terms of recruitment and training of replacement staff when an absent employee could have returned to work instead, will provide a sufficient incentive to businesses to participate.
Changes to current ill-health dismissal processes
The process of an employee undergoing the service’s health assessment itself is expected to be quick and efficient. The intention is that an initial assessment will take place by telephone within two days of the employee’s referral to the service. A follow-up and an indication of a return-to-work date will be provided in that same week. The service will produce 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 timeframe.
The government's return-to-work service is intended to complement, not duplicate, a business’s own occupational health provision
However, businesses should be wary of relying solely on the return-to-work plan to justify dismissing an employee. Given that any health assessment is expected to be brief, the return-to-work plan is likely to be viewed by an employment tribunal as a guide only and will not be definitive. Rejecting the recommendations of the service without proper consideration (and being able to demonstrate such a thought process) could lead to a successful claim of unfair dismissal or disability discrimination in the case of a long-term illness.
Remember, dismissing an employee 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. To effect a fair dismissal, employers are likely to require supplemental medical evidence.
A positive aspect of the new regime is that employers 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 a business’s options. These include whether some changes can be made that will get the employee back to work quicker or whether it would be prudent to arrange temporary cover in the interim.
The government has recognised that not all employees who are absent due to ill-health will be capable of returning to work or, indeed, all employers are willing or able to wait for them to return.
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.
While the government has been keen to emphasise that the service’s OH practitioners will provide a high-quality advice and assessment service, businesses should be cautious about the quality of the service’s advice and the status of any assessment or recommendation provided.
A common problem for businesses at the moment is that information received from an employee’s GP may contradict that received from the business’s own OH consultant. This issue could well be compounded by the brief interaction anticipated between the employee and the service. Where contradictory evidence exists, businesses should always view all available evidence before any decisions regarding an employee’s employment are taken. Recommendations contained in the return-to-work plan should be treated as advisory only.
The return-to-work plan should contain specific advice and recommendations to facilitate the employee’s return to work as soon as practicable. The plan will temporarily replace GP fit notes and this will be monitored, as the service may opt to take over responsibility for issuing fit notes in the future.
In the absence of the awaited guidance from the government, it is too early to definitively say what recommendations a return-to-work plan might make. However, the recommendations are expected to be broad. The government recently provided an example case study concerning an employee suffering stress and anxiety. It suggested steps such as a gradual return to work, a change of work activities and access to therapy and debt-counselling.
Employers with the view that paying for an employee to undergo debt-counselling is not something their business could, or should be, expected to do, should beware. If paying for the counselling is viewed by an employment tribunal as a reasonable step for a business to take to help an employee who is disabled by virtue of their stress or anxiety to return to work, it may find you have failed to make a “reasonable adjustment” and, therefore, have subjected the employee to disability discrimination.
Retaining occupational health consultants
It is easy to see why businesses are considering ending the use of their own occupational health consultants and saving the associated cost when it seems there will soon be a free, similar service to use. However, whether or not an employer stops using its own OH consultants will depend on the nature and extent of its current use of OH support.
The return-to-work plan should contain specific advice and recommendations to facilitate the employee’s return to work as soon as practicable
Inevitably, the degree of support offered via a free helpline service will not be as involved or tailored as that provided by retained consultants. Succinct and specific queries will be able to be dealt with via the service’s helpline, but this will not extend to more comprehensive advice with regards to the management of a particular employee’s health issues or circumstances.
As the service is free, it is not yet known what helpline resources will be available, or what is needed to meet the demand of businesses wanting to use it. Accordingly, while the service anticipates out-of-hours queries will be responded to within one working day of receipt, a business would not have any influence or control over access in the way that it would with its own OH consultants.
The service is intended to complement, not duplicate, a business’s own occupational health provision by working with that provider. If there is a conflict of opinion, it is likely that a more in-depth report from an OH consultant retained by and dedicated to a business would carry more weight than the views of the service.
Even so, each employee’s case should be reviewed and assessed on the balance of evidence you have from the service and elsewhere. Employers should not blindly accept the opinions of their OH consultant and disregard all else.
In summary, the service is expected to help businesses by returning long-term sick employees back to work sooner. If that expectation is met, it should be a good thing.
Andrew Moore is an associate at law firm Eversheds in the human resources practice group.