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Legal Minds

25 February 2015 / by / in

Fit for Work Guidance published – An Overhaul of Sickness Absence

It was a year ago that the Government announced its intention to transform the UK’s approach to sickness absence, and it has now published guidance for employers on how its new Fit for Work service (FFW) will operate.

Employers need to be aware of the significance of this new approach to sickness absence and be prepared that, from this month, the first they may know of an employee referral to FFW may be upon receipt of a return to work plan.

What is Fit for Work?

The Government set up FFW to provide free occupational health advice and support for employees, employers and GPs after it was recognised that after four weeks’ absence, many employees slip into long term absence, despite indications that early interventions are highly effective in preventing this.

The FFW free telephone and on-line advice service became operational from 15 December 2014 and a gradual roll out of an assessment service is expected between January and May 2015.

Once the assessment service has been introduced, GPs current responsibility to assess their patients’ long-term capability for work will be passed to the new service, which in turn will make an assessment (typically over the telephone) and produce a return to work plan. That will take the place of a fit note. The plan will be shared with the employer (although it is possible that some sensitive medical details could be held back) and will include recommendations on how to help the employee back to work. From that point, the employee will not need a fit note unless or until he or she is discharged from FFW.

What employers need to consider:

Whilst the guidance stresses that it is hoped that the scheme will particularly benefit Small to Medium Sized Enterprises, which may have limited access to occupational health advice and services, all employers will need to plan ahead and as soon as possible think about the following:

  • Training – Ensuring managers are equipped to respond to ‘return to work’ recommendations received from FFW. Is training needed? Should employers nominate one person as a central point of contact?
  • Review – Revising policies, contracts and procedures to ensure they reflect the new regime. For example, are current provisions about employee consent in relation to the sharing of medical information adequate? Do the triggers in a sickness absence policy ensure that time is allowed for any return to work plan to be implemented?
  • Existing Occupational Health Arrangements – Considering how (if at all), FFW might impact upon existing in-house occupational health resource. The service is intended to complement, not duplicate, occupational health provision already offered by the employer. However, how will employers respond if the service’s recommendations challenge the methodology of their current occupational health providers?
  • Follow Up – Understanding whether there might be consequences if recommendations are not acted upon. Co-operation with FFW is entirely voluntary but there may be legal implications if dismissal or disability proves relevant. An employer will need to be prepared to justify any decision to reject or modify the return to work plan, because it is likely to stand as a relatively persuasive list of the steps that could be taken to comply with the duty to make reasonable adjustments and/or be a factor to be considered when assessing the fairness of a dismissal for capability reasons. Of course, if a return to work plan is implemented and is unsuccessful, that may also be taken as evidence that the employee will not be able to return successfully.
  • Tax Considerations – From 1 January 2015, a tax exemption will be available for employer expenditure upon recommended medical treatments for employees (subject to maximum relief of £500 per year, per employee).

The fact that the service will take over from GPs only four weeks into any period of absence may encourage employers to engage with an absent employee earlier than is currently the case. However, it is likely that employers will also be expected to wait for a return to work plan before instituting capability proceedings. In any event, the changes herald a new era in sickness absence and place greater responsibility on the employer to facilitate a return to work for those on sick leave.

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