Following the government announcement, back in July, that the new Health and Work Service (now called Fit For Work (FFW)) would be launched late in 2014, FFW has gone live. On 2 January 2015 the Department for Work & Pensions published FFW guidance for employers (Guidance).
The FFW service is part of the government’s long-term strategy to help employees and employers manage sickness absence and, in particular, to address evidence that, after four weeks’ absence, it becomes increasingly difficult for employees to return to work and more likely that they will go on to claim benefits.
What is the FFW service?
The FFW service in England and Wales consists of two main parts.
- An advice service which provides employers, employees and GPs with free work-related health advice via its website (http://fitforwork.org) and a telephone helpline (0800 032 6235). This went live in mid-December 2014; and
- A free occupational health service (OH Service) for employees who have been off sick or are likely to be off sick for four weeks or more and have a reasonable chance of making at least a phased return to work. The aim of the OH Service is to provide the employee with a return to work plan (Plan) that can be shared with the GP and the employer. The OH Service is currently being trialled in Sheffield and is due to be rolled-out for the rest of England and Wales this spring.
In addition, from 1 January 2015, the government has introduced a tax exemption of up to £500 per year for each employee where an employer funds the costs of medical treatment recommended by the OH Service or an employer-arranged occupational health service.
How will the OH Service work?
- When an employee has been, or it is clear that he/she will be, absent from work for over four weeks, their GP should refer him/her to the OH Service. If a referral has not been made, an employer can make a referral after four weeks of absence. Please note that the employee must consent to the referral so, if the employee does not want to engage with the OH Service, this process will go no further.
- Employees will be contacted within two working days of the referral for an assessment by an occupational health professional who becomes the employee’s case manager. This will usually be a telephone assessment. The aim is to agree a Plan.
- Where deemed necessary, a face to face assessment will take place within five working days.
- Within two working days the Plan is sent to the employee and, if he/she consents, to his/her GP and employer. The employer will only receive the Plan if the employee has given consent to this.
- The case manager will contact the employee at an arranged point to check if the Plan is on course and shortly after the return to work date. The case manager can arrange a further assessment if, for example, the employee has not returned to work as anticipated and can revise the Plan.
- Employees will be discharged from the OH Service when they have returned to work, when further assistance cannot be provided or if a return to work has not been possible after three months.
Challenges for employers
A key challenge with the OH Service generally is that employees are not obliged to engage with the OH Service and can refuse consent to the case manager contacting the employer or to the Plan being provided to his/her employer and/or GP. Therefore, in cases of long-term absence, an employer may suddenly receive a Plan for an employee or may not hear anything at all. The employer could make a referral after four weeks but this may be of limited value as the employee must give consent.
Although the Guidance suggests the OH Service case manager may deem it necessary to contact the employer or the employer’s occupational health provider to help form the Plan, this appears to be at the case manager’s discretion and is subject to the employee’s consent. Therefore, the employer may have had no involvement in formulating the Plan, meaning it may not be viable, particularly if the OH Service has not been provided with accurate information by the employee about the workplace, the employee’s job role and duties. However, if the employee is a disabled person, for the purposes of the Equality Act 2010, the employer will be under a duty to make reasonable adjustments. In these circumstances, employers will need to tread carefully when rejecting recommendations made in the Plan to avoid disability discrimination claims. Further medical advice informed by knowledge of the employer’s workplace and the employee’s role and duties is likely to be needed to help justify the rejection of the Plan and to make alternative recommendations that are suitable for the workplace and the employee’s role.
A further challenge is that, beyond the general helpline, there appears to be no mechanism for the employer to contact the case manager to query the Plan or to request a further employee referral, for example, where the Plan has been unsuccessful or isn’t considered viable. Again, it appears from the Guidance that interventions can only be initiated by the case manager. In addition the OH Service comes to an end if a return to work has not been achieved within three months and an employee can only be referred for one assessment in a 12 month period.
Finally, the government’s guidance states that a Plan can be accepted as evidence of sickness absence in the same way as a fit note. As such, if an employee has a Plan, he/she will not need to obtain a fit note from their GP unless he/she remains off work when they are discharged from the OH Service. It is unclear at present whether, if an employer cannot accommodate the Plan, this means the employee is not fit for work or whether the employee would have to return to his/her GP to obtain a fit note. This could give rise to conflict, especially if an employee’s pay will be affected by the employer’s inability to implement the recommendations in a Plan.
Practical steps for employers
Given the challenges, employers should think about how the OH Service will work with their existing sickness absence management policies and occupational health services. In particular, thought should be given as soon as possible to:
- update any existing policies;
- consider who internally will deal with any Plans received; and
- whether training is needed for line managers, especially as we understand Plans may be sent to the contact name at the employer given by the employee rather than, for example, the employer’s HR department so it will be important for line managers to be aware of Plans and how to deal with them.
Upon receipt of a Plan, it is likely to be helpful for an employer to contemplate the following steps:
- consider whether the recommendations in the Plan can be accommodated and whether it would be beneficial to obtain further medical advice, particularly given the disability discrimination concerns highlighted above;
- meet with the employee to discuss the Plan. If the Plan can be implemented, this should be fairly straight forward. The Plan should be monitored and reviewed in accordance with the employer’s usual sickness absence management procedure. If the employer cannot accommodate the Plan, the reasons for this will need to be explained to the employee bearing in mind the disability discrimination concerns highlighted above; and
- if appropriate, obtain further medical advice from the employer’s occupational health service and/or the medical practitioner treating the employee, as appropriate. If the Plan suggests a fairly immediate return to work but the recommendations cannot be accommodated, the employer will need to determine whether the employee is fit to return to work in the meantime or whether the return to work will need to be delayed whilst additional medical advice is obtained.
For further help or advice on this issue please contact Lisa Kelly on 0191 211 7897.