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Fit for work?

It’s been a long time coming but the new government scheme to assist employees back to work will soon be available to everyone. The Fit for Work service (formerly known as the Health and Work Service) was first recommended by Dame Carol Black in February 2011 following a review of sickness absence in the UK. This review sought to identify ways of minimising the number of days work lost to ill health and to find ways of reducing the costs to individuals, employers and the taxpayer.

sicknessOne of the recommendations of the report was to introduce a government funded occupational health assessment for employees who are off work for four weeks or more. This has been piloted in a number of areas over the last four years and is now being rolled out nationally. The service is due to be in place in all areas by May 2015.

The government has recently published three guidance notes – for GPs, employees and employers – explaining how the service will work. It does not replace existing occupational health provision, so those employers who already have their own OH providers may choose to continue to use them, as they should provide a more detailed and comprehensive service. However, statistics suggest that only one in ten small employers and one in eight large employers provide OH services to employees. The new service therefore aims to “plug that gap” for employees who do not have access to these services.

It is expected that the majority of referrals will be made by an employee’s GP but employers can also make a referral directly. The employee needs to have been absent, or be expected to be absent for 4 weeks or more and must consent to the referral.

The guidance notes explain that the case worker carrying out the initial assessment will use a “bio psychosocial holistic approach”. This means they will take into account work, home, health and other issues in order to identify any blocks preventing the employee returning to work. A Return to Work plan will be drawn up – this may include referrals to physiotherapy or other medical services in cases of musculoskeletal or mental health conditions. The Return to Work plan may also make recommendations and where possible, will set out a timetable for progressing the return to work. Employers are “encouraged to act on the recommendations” however, it remains a decision for the employer whether to implement any adjustments.

This leads to a very important question which is, as yet, unanswered. How far will an employment tribunal take into account any recommendations made in a Return to Work plan in deciding whether an employer has acted reasonably in its treatment of an ill, or disabled employee? One would hope that a tribunal will continue to look at each case on its own merits and to accept that, in some cases, a suggested adjustment is simply not possible, no matter how reasonable it may appear at first glance. However, as with all these things, there is a risk that a tribunal may take the view that a recommendation from the Fit for Work service is deemed to be reasonable unless proved otherwise and a failure to implement them may count against the employer. Until we know more about the tribunal’s approach to this service, it could be a brave employer who chooses to ignore the recommendations!

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further