HR & Management

Addressing the sick leave debate: Fit for Work legislation

6 min read

05 March 2015

In the third of five pieces examining the most important changes or new arrivals to employment law, we take a look at the new Fit for Work programme – a new government initiative set up to help businesses manage sick leave.

It is estimated that UK workers took over 131m days of sickness absence in 2013, at a cost to the economy of up to £13bn. In an effort to address this significant cost to the economy, in February 2011 the government published a review into long-term sickness absence, which recommended the introduction of a government-funded assessment of employees by occupational health professionals after four weeks’ sickness absence. The programme, known as Fit for Work (FFW), has been trialled in Sheffield and will be rolled out to the rest of the UK by May this year.

How will the programme operate?

Employers and GPs will be able to refer any employee who has been absent from work due to sickness for four weeks or more for a free assessment by an occupational health specialist. GPs will also be able to make referrals at an earlier stage, if it seems likely that the employee will be absent from work for four weeks. 

Government guidance suggests that a referral to FFW will be the “default” position. However, it is not mandatory as it is dependent on both the employee’s consent and on the referring GP or employer considering that there is a reasonable likelihood of the employee making at least a phased return to work. 

The service will be delivered by registered occupational healthcare professionals who will contact the employee by telephone to make an assessment within two working days of the referral. If necessary a face-to-face assessment will take place, although this is expected to be a minority of cases. 

The case worker will look into all health, work and other issues that may affect the employee’s ability to return to work, including the impact of their condition and their job role. The case worker and the employee will try to formulate a Return to Work plan to address any obstacles preventing the employee’s return to work. If the employee consents, the case worker may contact the employer when formulating the plan for further details about the workplace context and possible adjustments that could be made. 

Return to Work Plans

If the employee consents, the Return to Work plan will be shared with their GP and their employer. The plan will cover a specified period of time and will state whether an employee is “fit for work” or “may be fit for work” subject to their employer being able to follow certain advice and recommendations. Where appropriate, the plan will include a timetable for progressing interventions and for returning to work.

While all parties are “encouraged to act upon the recommendations” it is not mandatory for the employer to implement them. Employers will need to decide if the adjustments are reasonable and affordable. However, employers should be aware of their obligation under the Equality Act 2010 to make reasonable adjustments for employees who have a disability and the recommendations of the Return to Work plan will be a consideration for employment tribunals in deciding whether any proposed adjustments are in fact reasonable. 

Read the the other employment law features in our series:

What does this mean for businesses?

The government hopes that businesses will be encouraged to act upon recommendations in Return to Work plans by a tax exemption of up to £500 per tax year per employee on medical treatments recommended to help employees return to work. Businesses should also consider updating their sickness absence policy to inform employees that they could be referred to FFW and to provide information on how the service works. 

If employers already have an occupational health service in place they should consider how this may interact with FFW. Employers can also contact the FFW helpline or website for advice on work-related health matters (when an employee’s health is affecting them at work) or when an employee is absent from work due to sickness. 

It is hoped that this new service will reduce long-term absence and sick pay costs by promoting recovery and rehabilitation. This should be particularly beneficial for small and medium-sized companies who may have limited access to occupational health advice and services. However, as a referral to FFW depends on both the consent of the employee and their GP, together with the fact that most assessments will be conducted by telephone, rather than in person, many employers may still prefer to request a medical report on the employee from their own occupational health providers, which can be more detailed and reflect a fuller understanding of the employer’s business, rather than rely simply on guidance from FFW. 

Next week we’ll be looking at shared parental leave, a change set to disrupt how parents deal with childcare.

Nicholas Le Riche is legal director, and Lavinia Randall a trainee solicitor, at Bircham Dyson Bell.

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