Fit For Work
A new way of looking
at sickness absence
FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
2014 figures suggest that workers in the UK take in excess of
130 million days’ sickness absence annually and working-age ill
health costs the national economy £100 billion each year.
As many as 960,000 employees are understood to be on
sick leave for a month or more each year, with nearly 1/3
of those dropping out of employment altogether. And yet,
it is well-known that being in work is generally good for
our health, from personal morale and income, to wider
social impacts. In contrast, sickness absence commonly
presents raised costs and productivity issues for employers,
financial and psychological struggles for the individuals
affected and their families, not to mention a strain upon
the State.
A Government-commissioned report by Dame Carol Black
and David Frost in 2011 (Health at work – an independent
review of sickness absence) led to a comprehensive review
of sickness absence in the UK, from absence statistics,
causes and effects. Several themes were identified
including that, after four weeks’ absence, many employees
slip into long-term absence, despite evidence that early
interventions are highly effective in reversing this trend. In
addition, feedback from employers suggested many were
in need of independent, bespoke advice, especially those
who do not have occupational health support or readyaccess to professional advice.
Amongst the recommendations of the 2011 review were:
• A state-funded independent assessment and advisory
service, to support return to work
• Revised Fit Note guidance
• Tax relief for employers on medical treatments or
vocational rehabilitation
• Retention of tax relief on Employee Assistance
Programmes
• Abolition of the Percentage Threshold Scheme
• Abolition of Statutory Sick Pay record-keeping
requirements
• A new job-brokering service to help long-term sick
employees find new work
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Fit for Work
In response to the 2011 review’s findings, the Government
has set up Fit for Work, a new service providing free
occupational health advice and support for employees,
employers and GPs. The specific objective of Fit for Work
is to help people with a health condition stay in or return
to work, through a free telephone and on-line advice
service but also, an independent health assessment and
follow-up after just 4 consecutive weeks’ sickness absence.
Assessment will lead to a Return to Work Plan and series
of recommendations for employers to facilitate the
employee’s return to work.
The helpline became operational on 15 December
2014 and was followed by the gradual roll-out of the
assessment aspect of the service. The Government’s aim
is that, aside from the important role that Fit for Work will
play in helping employees back to work, by providing
employers with early access to advice on how to support
their employees to stay in work, it will also have a vital
preventative role, reducing the likelihood of absence. It
will additionally encourage employees themselves to focus
on their circumstances and future.
Tax incentive for
employers
The 2011 review additionally recommended that
expenditure by employers on medical treatment and
vocational rehabilitation to keep sick employees in work or
facilitate their return – expenses which would ordinarily be
subject to income tax and national insurance contribution
– should attract tax relief.
From 1 January 2015 a tax exemption will apply to
qualifying employer-expenditure, including treatment
that is:
• recommended in writing by Fit for Work, an employer
Occupational Health adviser or other registered medical
practitioner;
• aimed at helping an employee return to work after
a period of at least 28 consecutive days’ absence (or
expected absence) due to injury or ill-health.
The exemption will not apply unless the employee has
been assessed as unfit for work for at least 28 consecutive
days or has been off sick for that period. The maximum
permitted exemption per employee in any tax year is £500.
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
What employers need
to consider
How will Fit for Work
operate in practice?
Employers need to be aware of the changes which Fit
for Work is likely to bring about to their current absence
management practices. For some employers, the first they
will know of an employee referral to Fit for Work may be
upon receipt of a Return to Work Plan.
A case study is set out below illustrating how Fit for Work
might sit with current absence management practice but
the Service has three principal roles:
Appointment of Case Manager
• Assessment – to identify barriers to the individual
returning to work;
Initial telephone assessment
(aim is within 2 days of referral)
In light of the potential involvement of Fit for Work in
employee sickness absenteeism, employers will need to
consider their sickness absence policies and whether they
wish to impose requirements upon employees as regards
co-operation in the assessment process, highlighting any
effects of failure to do so.
• Case Management; and
Particular issues to consider include:
• Line managers will generally be the first point of
contact for Fit for Work. Are your managers equipped
to respond to ‘Return to Work’ recommendations they
receive. Is training needed? Will you nominate one
person as a central point of contact and communicate
this to employees?
• Understanding whether there might be consequences
if recommendations are not acted upon. Co-operation
with Fit for Work is entirely voluntary but there may be
legal implications if dismissal is later contemplated or
reasonable adjustment fails to be made.
• Advice – accessible to employers, employees and GPs
by phone or online.
Referral to Fit for Work is described as the “default
position” for GPs. Whilst referral is at GP discretion,
therefore, it is expected that the GP will ask the employee
to consent to a referral as soon as it appears he or she
is likely to be unfit for at least 4 weeks unless one of
the very limited exceptions applies (see below). The
Government hopes that the referral process will take no
more than 2 weeks. If that hope is fulfilled then it is likely
that an employer will typically receive a Return to Work
Plan no later than 6 weeks after the start of the absence.
Alternatively, then so long as the employee has been
absent for at least 4 weeks the employer may seek referral
for employee assessment. As with a GP referral, this will
only be able to proceed if Fit for Work agrees the individual
is suitable and eligible to participate in the scheme.
• Revising policies and procedures able to accommodate
this change in approach.
Three important caveats apply:
• Considering how (if at all), Fit for Work might impact
upon existing in-house Occupational Health resource.
Are your employees aware of such resource?
• The 4 weeks absence must be consecutive; intermittent
absences of fewer than 4 weeks will not count, even if
they would do so if added together
• Participation is voluntary for all concerned
• Not every absent employee will be eligible – Fit for
Work aims to focus upon those employees who can
realistically be helped within a 3 month period. Those
with prolonged or more complex health issues are
unlikely to fall within that category. Also, only one
referral is permitted per employee in any 12 month
period. This means that if the employee has a second
period of absence, for whatever reason, neither the
employee nor the employer can obtain a Return to
Work Plan from Fit for Work. Presumably they can
however still ask for advice via the helpline –though
such difficult cases may be beyond the scope or
expertise of the helpline advisers.
The assessment process is likely to involve the following
stages:
GP referral after 4 weeks’ sickness absence
Further telephone assessment
(aim is within 2 days of initial assessment)
Face to face assessment
(if needed – either initial or further.
Aim is within 5 days of phone assessment )
Return to Work Plan sent to the employee
(aim is within 2 working days of assessment)
Fit for Work will send a Return to Work Plan
to the GP and/or employer
(providing employee consents)
Progress review by Case Manager
The process will end when either:
• The employee returns to work (including a return on a
phased basis)
• Fit for Work can offer no further assistance
• A return to work has not proved possible after 3 months.
The Return to Work Plan will not only identify the steps
which the Fit for Work adviser deems appropriate to
facilitate the employee’s return to work, but will set out
a timeframe within which that is expected to happen.
Once an employee has been referred to Fit for Work for
assessment, Fit for Work may assume control over the
issuing of future Fit Notes. In the normal course of events,
once the employer receives a Return to Work Plan, they
should assume they do not require further Fit Notes whilst
the plan is operational. If the employee declines to disclose
the Return to Work Plan to his or her employer, the Fit for
Work adviser will refer the individual back to the GP who
will then resume responsibility for the issuing of Fit Notes.
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Legal issues for employers Disability discrimination
DISCRIMINATION
DISMISSAL
BREACH OF
CONTRACT
DATA
PROTECTION
HOLIDAY PAY
Employers are required to make reasonable adjustments
in relation to any employee who comes within the
legal definition of a “disabled person”. Some but not
all sick employees will fit this definition. Therefore, any
recommendations for adjustments to equipment, work
duties and policies and rules which are made in the Return
to Work Plan should be given serious consideration since a
tribunal will probably start from the assumption that such
recommendation adjustments are “reasonable” ones for
the employer to make.
Even if the employee is not “disabled”, if the employer
declines to make an adjustment the consequence may be
that the employee cannot return to work and is ultimately
dismissed. Such a dismissal will not be fair if it would have
been reasonable to make the adjustment. So once again
the recommendations in the Return to Work Plan are
important even if the employee is not technically within
the definition of a disabled person.
Employers must also take care not to be unreasonably
influenced by third party advisers, such as Occupational
Health professionals. Employers have been reminded
recently that they cannot follow such advice blindly, for
example to claim a lack of knowledge of disability, but
must form their own judgement on all the facts available
(Gallop -v- Newport City Council, 2014).
When is an adjustment
“reasonable”?
Employers are obliged legally to make reasonable
adjustments to counter disadvantage from disability.
What is “reasonable” in this context will vary according
to the circumstances and can only be determined
definitively by a Tribunal. Factors to be taken into account
include whether the adjustment would have redressed
disadvantage to the employee resulting from disability,
the financial resources of the employer in terms of funding
the adjustment and any disruption the adjustment might
cause for the employer.
It is now clear that what is reasonable extends beyond
workplace adjustments, to steps such as funding private
psychiatric counselling, if they will help an employee deal
with the pressures of work (Croft Vets Limited -v- Butcher
2013). Fit for Work’s focus is upon overcoming obstacles
to a return to work, whether or not health-related. Its
recommendations may well include counselling, therefore.
Although employers will not necessarily be obliged to
act upon all recommendations, they should nonetheless
approach them with caution as potentially reasonable
adjustments.
When is it reasonable
to dismiss for long-term
sickness absence?
Clearly, not all employees who are absent due to ill-health
will be capable of returning to work or at least will not be
able to do so before it is reasonable for the employer to
decide that it cannot wait any longer.
Fit for Work will have a role, as part of its case
management function, to identify this and, if appropriate,
to refer the employee to a new internet job-matching
service. For employers, the point at which dismissal
becomes a relevant consideration will vary but the courts
have identified three important themes:
• Can the employer be expected to wait any longer?
• Employers should consult with the employee and take
their views into account;
• Employers should take steps to discover the employee’s
medical condition and likely prognosis. Length of
service is also a relevant factor.
(BS -v Dundee County Council, 2013)
PERSONAL
INJURY/HEALTH
& SAFETY
As employers will be all too aware, addressing sickness
absence can introduce an array of legal issues. These
will be just as relevant in the context of Fit for Work,
from discrimination to breach of contract, pay queries
and matters of health and safety. Also, decisions over
dismissal (if applicable) bring with them a need for fairness
and fair process, as well as reflection upon whether the
contract has been frustrated or whether permanent health
insurance protection might be affected.
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Absence management example
scenario under Fit for Work
FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Q:Does Julie qualify for referral?
Yes
No
Q: How long might referral take?
2 days
• This is Julie
2 weeks
• She works as a Cashier at National Bank
6 months
• Recently, Julie has felt everything is going wrong. She has loans
she is struggling to pay, resulting in violent arguments with her
husband and she is now exhibiting symptoms of stress
Q: Does Julie have to comply with it?
• She has been off work for 2 weeks but has now made an
appointment to see her GP again
• Julie’s manager, Sue, is worried
• Julie had been arriving late for work and when there, had been
forgetful and distracted. Her interaction with customers had also
been poor
• Julie has now been on sick leave for 2 weeks with “stress”, which
presents a staffing problem
• Sue wants to be sympathetic but also wants to know if there is
anything she can do to facilitate Julie’s return. She calls the Fit for
Work helpline
• The adviser recommends that Sue talks to Julie, to see if she is
prepared to discuss the causes of her stress (in confidence) and to
consider whether there is anything the Bank might do to facilitate
her return to work
GP notes
Fit Note
Employer records
How long will it take to produce a Return to
Work Plan?
2 days
Yes
2 weeks
No
6 months
A: YES, Julie appears to qualify for referral.
Unless one of the limited exceptions
applies, as outlined above (such as the
GP perceives Julie could not be helped to
return to work in the next 3 months or she has already
been referred to Fit for Work in the last 12 months),
providing Julie consents, she would appear to qualify
for assessment and support from Fit for Work. (One
exception might be if her GP diagnoses a condition
which, in his or her view, cannot be helped within
the 3 month time frame applicable to Fit for Work. It
would then be an option for the GP to delay referral
until such time as Fit for Work might be in a position
to help. GPs hold ultimate discretion, however.
• An appointment is made by Fit for Work
for Julie to speak to an assessment officer
by phone
• Julie also mentions that she does not want her
employer to know that she has debt problems
• Julie’s GP identifies that she is suffering from various stress-related
symptoms (loss of sleep, anxiety, loss of concentration)
• During the call, she tells the adviser all about
her issues at home, her symptoms and that she has
started having panic attacks
• Time has moved on and Julie has now been absent for 4 weeks
Q: What medical and other information
will the Fit for Work Adviser see prior
to the call?
• The adviser explains they will draw up a Return to
Work Plan.
A: FIT NOTES ONLY. A criticism of Fit for
Work amongst employers has been that the
advisers will know next to nothing of the
employee’s medical history. In terms of the
objectives of the service, that is deliberate. It is vital
to distinguish a health assessment in the clinical sense
from what Fit for Work is about, which is an holistic
appraisal of what is preventing an employee from
returning to work. However, once Fit for Work has
made contact with the employee then, providing the
employee consents, the adviser may choose to contact
the GP and/or employer for further information before
proceeding.
• The Fit for Work adviser sends Julie
a Return to Work Plan, confirming
her continued absence for stress but
suggesting interventions which might
facilitate her return to work:
– she has an informal meeting with Sue asap;
– a return to back office duties in 2 weeks;
– a phased return to cash desk duties in 1 month;
–funding/ time off for Cognitive Behavioural
Therapy (CBT);
– funding/ time-off for debt counselling;
– time-off to attend Marriage Guidance
• He provides a Fit Note for a further 2 weeks, but recommends
referral for a Fit For Work assessment
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Q: Must Julie allow National Bank to see the
Return to Work Plan?
Q: Does Sue have to speak with the Case
Manager?
Q: Can the Case Manager offer advice upon
disciplinary action?
Q: On receiving the revised Return to Work
Plan, what are National Bank’s options?
Yes
Yes
Yes
Must wait 6 months
No
No
No
Commence dismissal procedure
Continue to provide support/ liaise with Julie
Q: Is National Bank obliged to accept all/ any of the
recommendations in the Return to Work Plan?
Yes
No
A: NO. Julie has control over what (if anything)
the employer and/ or the GP, sees. She could,
for example, ask for a redacted Return to
Work Plan, if she isn’t comfortable with her
employer seeing the whole thing and could request a
different version again for her GP.
• Julie permits a redacted version of the Return to Work
Plan (omitting the reference to debt-counselling) to
be sent to National Bank
Q: Is National Bank obliged to fund CBT?
Yes
Yes
No
No
A: NO. See previous answer although, in
principle, many employers might wish at
least to have the conversation. Even so,
employers need to be confident in their
managers’ ability to discuss such issues with an
adviser from Fit for Work.
• The Case Manager speaks to Sue and explains Julie’s
anxiety
•
The Case Manager also explains the CBT may attract
tax exemptions
• 2 weeks later she receives an appointment for a
telephone review with her Fit for Work Case Manager
• Julie tells the Case Manager that she met with Sue
in accordance with the Return to Work Plan, but the
meeting didn’t go well as National Bank don’t want
to fund CBT
• Julie agrees to the Case Manager contacting Sue
Q: Can the Case Manager offer advice upon disability?
• Sue is frustrated that Julie has avoided her
calls and is struggling with staff cover. She
is thinking about disciplinary action
• What Sue really wants to know is whether
Julie might have a disability which could impact on
her next steps.
Q: Could Julie rely on a failure to comply with the
Return to Work Plan to support a tribunal claim
against National Bank?
Yes
No
A: NO. It is not the function of Fit for Work to
involve itself in advice on disciplinary issues
nor legal issues such as defining disability and
its advisers will not be qualified to do so. In
either case, employers must reach their own conclusions
about disciplinary action and disability, based on all the
evidence available.
However, the final question is slightly less straight
forward. It remains to be seen quite what weight
employment tribunals will attach to Return to Work
Plans in the context of a claim. Whilst a failure to
comply with a reasonable recommendation of Fit for
Work is not automatically a failure to effect a reasonable
adjustment, it seems highly likely this will at least be
referred to as a persuasive part of the overall evidence of
alleged employer failings.
• Julie speaks to Sue who allays her fears
regarding a return to work
Q: Would it make a difference if the advice to Julie was
that she should not return to a public-facing role?
Yes
No
A: ALL OF THE ABOVE are options for the
Bank, depending upon the circumstances
and the ability to cover Julie’s absence, etc.
It could commence a dismissal procedure
but would need to be seen to act reasonably and fairly.
In any event, a fair dismissal procedure would expect
the Bank to liaise with Julie and consider possible
alternatives to dismissal before deciding to dismiss. If
Julie’s public-facing role is the primary issue, whether or
not the Bank can reasonably accommodate a move will
depend upon the size and resources of the Bank and
whether there any reasonable alternative roles for Julie.
What if..
• Julie had omitted to tell her GP or the Fit
for Work adviser that National Bank has its
own in-house Occupational Health team?
• As soon as Sue received the Return to Work
Plan, she referred it to her in-house advisers for
review?
• The in-house team is concerned, based on previous
periods of absence, that Julie may be suffering from
depression and it disagrees with the Return to Work
Plan (see next page)
• Sadly, “out of the blue” the day before her
agreed return, Julie receives a solicitors letter
regarding a divorce
• Julie goes to pieces and has a severe anxiety attack.
Her GP tells her she should take at least 6 months off
work and agrees to speak with the Case Manager
• The Case Manager suggests a revised Return to Work
Plan
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Q: Which recommendations take
precedence, those expressed in:
Return to Work Plan?
OR
report prepared by in-house Occupational Health
advisers?
FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
A: Ultimately, the employer will need to reach
its own decisions, based on all the evidence.
Practical reality, however, is that the inhouse advisers are likely to have greater
knowledge. Also, Fit for Work is committed to
working with in-house teams so it is unlikely they would
oppose that team’s view and would largely delegate the
Return to Work Plans to them.
Fit for Work contact
details
Does your organisation
need help to get ready?
England and Wales
www.fitforwork.org
0800 032 6235
The Government is rolling out a more pro-active approach
to managing sickness absence through a new service,
“Fit for Work”.
Welsh Language Line
www.fitforwork.org
0800 032 6233
The specific objective of Fit for Work is to help people with
a health condition stay in or return to work, support being
provided by a telephone and on-line advice service. But Fit
for Work will also offer employees an independent health
assessment after just 4 weeks’ of sickness absence. These
assessments will result in a Return to Work Plan, likely to
include a series of recommendations for employers, aimed
at facilitating the employee’s return to work.
Scotland
www.fitforworkscotland.scot
0800 019 2211
We can assist your organisation by:
Preparing your managers for this change and ensure
they are aware of its implications?
Equip your managers with the skills to address ‘return
to work’ recommendations received from Fit for Work
without risking discrimination
Ensure policies and procedures able to accommodate
this change in approach?
Having been involved in early discussions about the new
regime with the Department for Work and Pensions and
co-presented a national series of briefing sessions with
them, we can offer your organisation training and advice
on how the new scheme will affect your approach to
sickness absence and the potential pitfalls.
If you want to learn more, please contact Naeema
Choudry, Partner, on 0845 497 8283 or via
naeemachoudry@eversheds.com or Sally Isaacs,
Principal Associate, 0845 498 7743 or via sallyisaacs@
eversheds.com.
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FIT FOR WORK: A NEW WAY OF LOOKING AT SICKNESS ABSENCE
Notes
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