WITH it being estimated that 960,000 employees are on long-term sickness absences, leading to 130 million working days being lost with a cost of £9 billion to businesses, the government is implementing a new scheme aimed at assisting sick employees back into work and helping employers deal with absent staff.
On the face of it, 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 businesses? From the end of 2014, the government will start to roll out a new, proactive 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 on-line 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.
Once the service is up and running, you will be able to contact a helpline support by phone or e-mail 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.
Businesses 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 upon returning to work and ways this might be facilitated.
The service will be delivered by OH 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 him or her unable to return to work.
Understanding the reasons for absence early on will allow you to explore 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, the service might steer them towards organisations which could help them.
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 locum or 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. However, whether in fact the new regime will help your business with finding solutions to the problems caused by absent sick employees will rest heavily upon the quality of service provided by the OH professional assigned to deal with your 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, may jeopardise their right to sick pay and other entitlements, and may place themselves at risk of disciplinary action by their unreasonable conduct.
It is not compulsory for employers to participate in the new scheme either. That said, the government’s recent comments in the press suggest that anticipated likely cost 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 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, with a follow-up and an indication of a return-to-work date provided within 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.
Employers should be wary of relying solely upon this plan to justify dismissing an employee. Given that any health assessment is expected to be brief, the plan is likely to be viewed by an employment tribunal as a guide only, not 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 the options, such as whether you can make some changes that will get the employee back to work quicker or whether it would be prudent to employ a temp in the interim.
No return?
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 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.
Be cautious
While the government has been keen to emphasise that the service’s OH practitioners will provide a high-quality advice and assessment service, you should be cautious about the quality of the 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 a 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, you should always view all available evidence before any decisions regarding an employee’s employment are taken.
Accommodating recommendations
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 replace GP t notes, temporarily, while the plan is followed. The service will monitor this and may opt to take over responsibility for issuing fit notes in the future or allow the employee’s GP to do so.
In the absence of the awaited guidance from the government, it is too early to say, definitively, what recommendations a 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 which suggested steps such as a gradual return to work, a change of work activities and access to therapy and debt-counselling.
If you are thinking that paying for an employee to undergo debt-counselling is not something your business could, or should be expected to do, beware.
If paying for the counselling is viewed by an employment tribunal as a reasonable step for your business to take to help the employee return to work (for example, because your business would be able to easily accommodate the cost), if the employee is disabled by virtue of stress and anxiety, the tribunal may find you have failed to make a “reasonable adjustment” and, therefore, have subjected the employee to disability discrimination.
If you think that is far-fetched, as a word of warning, a tribunal has found that paying for an employee’s psychiatric counselling is a reasonable adjustment for the person’s employer to make.
