11 February 2015

Is "Fit For Work" fit for purpose?

The first Monday in February is apparently "National Sickie Day" when the levels of absenteeism in British businesses hit their peak. So it’s perhaps apt that this month sees the Government unveil further plans for its new occupational health service aimed at helping employers combat sickness absence, formerly known as the Health and Work Service. The service has now been re-branded as Fit For Work (FFW) and further guidance has been published on how it will operate.

Absence Prevention Advice

FFW will provide free online and telephone health and work advice to help with absence prevention. Employers, employees and GPs will be able to contact it through the website or by phone. The advice provided is aimed at helping identify adjustments that could help an employee remain in or return to work.

Occupational Health Assessment

FFW will provide a free occupational health assessment for employees who have reached four weeks of sickness absence or whose GP expects them to do so. In most cases the GP will make the referral but it is anticipated that employers will also be able to do this.

Both the employee and the employer/GP must consent to the involvement of FFW, although this is described as the "default" position. The referring employer or GP must consider that there is a reasonable likelihood of the employee making a return to work, at least on a phased basis. Although the expected trigger point for referral is four weeks, the guidance suggests that GPs may exercise their professional judgment about clinical appropriateness (e.g. if it is obvious that it is too early to start thinking about return) - although it is difficult to see how a referring employer would be able to do the same. GPs are advised in the guidance to err on the side of referral if they are not sure. Where referral is made by a GP, the employee is advised but not obliged to inform their employer of the referral.

After the referral is when things get interesting. The employee will be assessed by a "registered occupational healthcare professional". However, this will not necessarily be a doctor. Nor will the assessment always involve an examination; in fact, it is envisaged that only a minority of cases will do so. In most cases, a telephone assessment will be the basis of the recommendations. The service is promised to be fast; telephone assessments will be made within two days of referral and face to face assessments within five days. The assessment method is described as "biopsychosocial holistic assessment", which will take into account health, work, and other issues (e.g. personal and social) that may be affecting the employee’s ability to return to work.

Following the assessment a Return to Work plan will be produced for the employee and, with their consent, with the employer. The Plan will reflect the assessment and provide advice and recommendations for interventions (i.e. adjustments) to help the employee return to work more quickly. This will take the place of a fit note and the guidance suggests that employers should refrain from requesting fit notes in these circumstances, in order to prevent wasted consultations with GPs. Obviously if the employee does not allow the employer to see the Return to work plan, then a fit note is required.

While the proposed holistic basis of assessment is admirably broad from the employees' perspective, it does not really reflect the legal framework on sickness absence. Notwithstanding that it is theoretically up to the employer whether to implement the recommendations, employers may be rather concerned to learn that the recommendations they receive may go well beyond medical necessity into the realms of social issues. This will also complicate the analysis at the employer's end since they will need to identify which of the recommendations may be underpinned by the force of law (such as disability discrimination legislation). Those who are regularly consulted on these sorts of issues will know that the million dollar question is always "Legally speaking, do we really have to make all these adjustments?". In the case of recommendations based on a the employee's "biopsychosocial" needs, the answer is likely to be "we don't really know."

Follow up and interface Between Employer and Employee

The FFW case worker will also follow up with the employee at pre-determined points to check on progress.
FFW may also contact employers directly either to gather information in the context of the initial assessment or, where recommendations have not been actioned, to undertake a "facilitation role" between employer and employee. They may also contact employers where the work relationship has been identified as one of the constraints on the return to work.

This role as intermediary is likely to be viewed with some suspicion by employers and their representatives. There is not necessarily an alignment of interests between the government who will wants employers to take workers back into the fold on amended terms, whatever the inconvenience and employers who may well find it less challenging to cover unpaid sickness absence with a temporary worker at little additional cost than to accommodate a complex set of adjustments, with unpredictable consequences.

Good News for Employers?

At first blush, a free occupational health service aimed at getting employees back to work sounds like great news for employers. But there is some complexity here to digest, not least the issue of ”mission creep”. It’s hard to see how a telephone assessment will enable advisers to do any more than repeat what employees have told them. Recommendations coming from FFW will encompass a broader range of considerations than employers are legally obliged to accommodate but will have the force of a professional opinion and, unlike most private referrals, will not be based on the assessment of a doctor who has undertaken a consultation. Employers may be left puzzling over which recommendations reflect medical necessity and which reflect broader “biopsychosocial” needs. While it is technically open to employers to decline the suggested adjustments, they will be on the back foot in doing so, with the onus on them to explain why and little meaningful possibility of challenging the recommendations made.

Cynics may say that the recommendations are likely to reflect the imperative to get employees back to work at any cost. But any overly-bullish advice will prove a false friend to employers who are likely to find complex adjustments and yo-yo attendance harder to manage than just plain sickness absence. The suggestion of a “facilitation role” by the occupational health advisors is also interesting but with scope to cause more problems than it solves for employers.

Employers will not have any choice about whether to engage with FFW given that most referrals will be made by GPs. However, ensuring that they have the contractual right to insist on examination by their appointed specialist may be more valuable than ever if it becomes necessary to dispute or clarify the advice received.

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