Fit for purpose?

UK Employment Alert | September.30.2015

​The Government is in the process of rolling out a new occupational health (OH) assessment service which should be in place nationwide by the end of the year. This new service has come about as a response to an independent review of sickness absence published in 2011, which found that a major barrier to getting the long-term sick back to work, was lack of access to occupational health advice.

The new service is known as the Fit for Work (FFW) service and this is how it will work:

Employees of any age are eligible to benefit from the service if they live in England, Scotland or Wales, are in paid employment, are referred to the service by their GP or employer because they have been off work sick for at least 4 weeks or are expected to be off for 4 weeks or more and are likely to be able to return to work at some point. The employee must consent to the referral.

Within two days of a referral, the employee will be contacted by an OH professional who will undertake a telephone assessment and then become their case manager. The Government Guidance to the new service states that it anticipates that face-to-face assessments will be required only in a minority of cases. The case manager and the employee then agree a return to work plan (RTW). The RTW will contain details of a phased return, dates and reasonable adjustments. The RTW can replace a fit note as evidence of fitness to work.

So far so good and we do so hate to be cynical, as free OH assessments will no doubt be helpful to businesses who have no access to such things, but the service on closer inspection, may create more problems than it serves to fix.

The vast majority of the assessments will be carried out over the phone, with no face-to-face meeting. It is clear that this is not the optimal way to assess someone’s health and may very well increase the chances of the RTW being unrealistic and based entirely on the employee’s view of what works. This problem is heightened by the fact that the case managers may (with the employee’s consent) contact the employer but they >do not have to. There is no requirement to include the employer in the discussions. As a result, the chances of the RTW being unrealistic and based on an incomplete assessment of the employee’s role, seem quite high.

The Guidance states that it is not mandatory for employers to implement the recommendations in the RTW but clearly employers will have to have considered the RTW carefully and have strong objective reasons for not implementing it in its entirety, in order to avoid claims of constructive dismissal or disability discrimination. Sickness absence is such a grey area anyway and views on what will work and what will not work differ so widely, that there is always the possibility of disagreements arising over the content of the RTW, especially if it has been created without the employer’s input.

Another limitation on the service is the four week trigger. This means that it will not be accessible for employees with persistent short term absence problems. As you know, these are often the most difficult to manage and there is no help provided by this service to manage these absences which seems a missed opportunity.

To prepare for this new system, employers should amend their current sickness policies to refer to the service and make it known that employees may be referred by the employer or their GP after a period of absence. If you as an employer are contacted by someone from this service, make sure you engage and think carefully before refusing to implement any of the suggestions. Come and talk to us if you have any questions.

Time will tell if this new system will work. The fit note system which was introduced several years ago has had minimal impact on reducing sickness absence, so taking the initiative away from the GP and giving it to OH professionals might be a step forward. The potential for not involving the employer however, might lead to some tricky situations.