Fit for Work – Fit for Purpose?

The idea of a service to help employees back to work was first mooted back in November 2011. Now the Government is planning to launch a Fit for Work scheme in the spring. James English looks at the implications for employers.

 In November 2011, Dame Carol Black and David Frost CBE’s report, ‘Health at Work – an Independent Review of Sickness Absence’, made a number of recommendations, including the Fit Note. One other recommendation was a government-funded occupational health service (the Independent Assessment Service) to support employees in returning to work if they had been absent due to sickness for more than four weeks. As a result, the government’s ‘Fit for Work’ service is due to launch by May 2015.

Another recommendation from the report is also being introduced from 1st January 2015. Medical treatment up to £500 (per tax year, per employee) which has been recommended either by Fit for Work under a Return to Work plan, or by an existing OH service, will be tax (and NIC) exempt. This will apply if the employee has been (or is assessed as likely to be) absent from work for 28 consecutive days due to the illness or injury.

How the scheme will work

The aim of the service is to provide advice to employees who have a health condition that affects their work, and that advice can include information on the adjustments their employer should consider making to assist with this (set out in a ‘Return to Work’ plan).

The service will be staffed by case managers, experienced occupational health professionals, and advice and assistance will be delivered online (by online chats or email conversations) or by the telephone advice line. There will be face-to-face assessments only for exceptional cases. If so, the scheme might also cover an employee’s reasonable travelling expenses. The website is already up-and-running:

www.fitforwork.org

Referrals

Referrals can be made by GPs or employers (but not by employees). Whilst an employer can only refer an employee if they have been absent for at least four weeks, a GP may do so earlier if they consider it beneficial. Employers won’t be obliged to use the scheme.

Not all employees are eligible to use the scheme. They must be absent from work for four weeks or more, remain in employment and have a reasonable likelihood of returning to work (even if on a phased basis). Only one referral a year is allowed per employee. If they have already received a Return to Work Plan or been referred by their GP, they cannot be re-referred. Finally, the employee must consent at every stage.

The Assessment

The assessment, described as a ‘bio psychosocial holistic assessment’ (and people accuse lawyers of using jargon!), will also cover any personal and social issues affecting the employee’s health and attendance at work, as well as issues specifically related to their working environment. There may also be more than one assessment if it is appropriate.

The case manager will prepare a Return to Work Plan which will suggest, where appropriate, what the employer can do to assist the employee’s return to work. If an employee has a Return to Work Plan, they can use this instead of a Fit Note for Statutory Sick Pay purposes.

The implications for HR managers

The Government has already published separate Guidance for Employers, GPs and Employees (developed in conjunction with ACAS):

www.gov.uk/government/collections/fit-for-work-guidance

The Guidance states that employers will be encouraged to act on the recommendations but they will not be mandatory, and that the case manager will help to facilitate the recommendations with employers. If the employee fails to engage with the plan or return to work, it will then be for the employer to deal with this situation. The Guidance for Employers also recommends that employers update their sickness absence policies to reflect the new scheme, and that staff are informed about it too.

There is one problem which the service cannot solve. Often, employers may know or suspect than an employee’s absence is related to a long-standing health condition and they may qualify as a ‘disabled person’ for a discrimination claim. Some employers may find it helpful to get an early indication of what reasonable adjustments might be needed in each case.

However, there are obvious limitations to a telephone assessment particularly in cases involving multiple and/or complex conditions. The case manager is likely to have very limited information about the workplace and the individual employee’s working conditions, especially if the referral comes from a GP. Some GPs have used the Fit Note to suggest workplace adjustments, and many employers will already be aware that these are often based on the information provided by the employee.

The difficulty is that even if an employer complies with the plan in full, it may not provide a defence to a discrimination claim. On the other hand, a failure to implement a plan may not be discriminatory particularly where the assessor did not fully understand the employee’s working environment. Where there is no question of an underlying health condition or disability, the scheme may have more success in tackling absence and attendance issues.

Fit For Work may turn out to be similar to the introduction of the Fit Notes system – not a terribly dramatic development for employers but not especially useful either. As long as employers are aware of the limitations of the scheme, and the implications of a Return to Work Plan, they should get the best from the scheme without relying on it in more complex, protracted cases.

James English
Senior Solicitor
Hempsons