Following a government consultation, the creation of a new, government-funded Health and Work Assessment and Advisory Service (the “Service”) has been proposed. Research, however, indicates that only one in ten small employers provided employees with access to occupational health (“OH”) services in the previous year, compared with eight in ten large employers. The new scheme has been designed to redress this imbalance, as the government believes that proactive OH intervention is a key factor in getting absent employees back to work.
The Service is due to begin in “late 2014″ (although the exact date of implementation is still unclear). It is intended to help people who have been on sick leave for four weeks or longer to get back to work as quickly as possible, by initiating an occupational health assessment and formulating a return-to-work plan. A successful pilot scheme has been in operation already.
In summary, the Service will provide:
- A state-funded OH assessment (an initial telephone consultation and further assessments if necessary, a return to work plan, and case management); and
- An advice line for employers, employees and GPs.
Referral for an occupational health assessment
There will be a robust referral mechanism for the state-funded OH assessment where, after four weeks’ of sickness absence, an employee’s GP should automatically refer individuals for an assessment unless there are clear and well-defined reasons for not doing so.
The Government has promised to publish clear guidance to assist GPs in making appropriate referrals, with the aim that referral should be the default position after four weeks of absence. Where an employee fails to engage with the Service after a referral, no further fit notes should be issued by the GP and, therefore, the employee will be unable to claim statutory sick pay. This may also mean that any continued absence is unauthorised, for the purposes of an employer’s disciplinary procedure.
Where an employee has not been referred at the end of the four-week period, and the employer does not feel the information provided by the GP on the fit note is sufficiently clear or helpful, they may refer the employee themselves.
Following a referral, an OH professional will conduct an initial telephone assessment to assess the level of need and determine the most relevant support for the employee. There may then be further assessments by telephone or face-to-face. After this, a report will be shared with the employee, employer and GP outlining recommendations to enable a return to work. Where an assessment does not identify a timetable for a return to work, the Service will decide who should issue any further fit notes.
Where an assessment identifies a need for further support, the Service may refer the individual for medical treatment or will make the relevant recommendations for their return to work. Responsibility for acting on recommendations will be shared between employer, employee and the employee’s GP. The Service will follow up with individuals to ensure the recommended steps are progressed.
There will also be a telephone and online advice service. This broadly aims to:
- Advise employers dealing with employees that have not been referred to the assessment service yet (e.g. those who are currently self-certifying), and help them with applying GPs’ advice set out in fit notes;
- Advise GPs about the management of individual health and work-related issues, for example where a patient does not meet the criteria for an assessment; and
- Advise individuals on managing health conditions at work and provide advice on workplace adjustments.
Will it be useful?
The Service is likely to be of particular benefit to employers who do not already have existing OH arrangements in place, and the pilot schemes have certainly been well-received. At the very least, the Service is likely to address the issue of employers receiving fit notes from GPs, sometimes for significant periods, that simply provide a one word diagnosis (such as “stress”) with little else to help employers facilitate a return to work or understand the realistic timetable for doing so.
The assessments should help employers to take informed decisions about employees on sickness absence, including the need for any reasonable adjustments to help address the risk of disability discrimination claims. It is hoped that the referral system, and clear disincentives for employees who refuse to engage with the Service, will help to identify those who are fit to return to work (but are reticent to do so) allowing employers to adopt a robust approach based on medical advice.
For employers that already have OH support, the government says it expects the Service to “complement” existing OH provision and not duplicate it. Without further guidance, it is not really clear how this will work. It could be helpful where an employee refuses to engage with existing OH services (because of the clear repercussions of failing to engage with the state-funded assessment service). However, if an employer disagrees with the state-funded assessment service’s recommendation, or it is very difficult for it to implement, there is likely to be limited room for manoeuvre.
We advise taking a pro-active approach to engaging with the state-funded service, just as employers should with their own OH services. In particular, employers should not be afraid to ask lots of questions, and should make sure that that they completely understand any recommendations that have been made and the reasons behind those recommendations, before taking any decisions.
While it is difficult to predict whether the government’s high hopes for the Service will materialise until we see how it operates in practice, given the significant difficulties employers face in dealing with sickness absence, the new Service does look to be a positive development for all employers.
Kate Ledwidge is an employment lawyer at leading law firm Taylor Vinters.
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