We have seen an onslaught of proposals to change employment law over recent months. Perhaps one of the less contentious announcements was the independent review of the sickness absence system,
We have seen an onslaught of proposals to change employment law over recent months. Perhaps one of the less contentious announcements was the independent review of the sickness absence system, announced back in February. However, the findings have been published today and, like many of the other proposed changes to employment law, it is likely that this review will cause some debate.
The review was led by David Frost and Dame Carol Black (who authored "Working for a healthier tomorrow" in 2008 which recommended the introduction of "fit notes" and a national "Fit for Work" multi-disciplinary advisory service rather like an independent employee assistance programme). It makes a number of recommendations to improve sickness absence, including the following:
• The Government should fund a new "Independent Assessment Service" (IAS). The IAS would provide an in-depth assessment of an individual's physical and/or mental function. It would also provide advice about how an individual on sickness absence could be supported to return to work. This service would usually be accessed when an individual's absence spell has lasted around four weeks.
• The Government should revise fit note guidance to ensure that judgments about fitness to work move away from only job-specific assessments.
• Expenditure by employers targeted at keeping sick employees in work (or speeding their return to work) such as medical treatments or vocational rehabilitation should attract tax relief.
• Record-keeping obligations under SSP should be abolished, helping to reduce employer administrative burdens.
• The Government should update its Employers Charter to address misconceptions around sickness absence management, especially legal uncertainty.
• Public sector employers should take immediate action to bring the worst performing parts of the public sector up to the standards of the best. The Government should also review occupational sick pay in the public sector.
• A new "job-brokering" service should be introduced to help long-term sick employees find new work (where appropriate) before they fall onto the benefits system.
One of the most radical recommendations is the IAS. The review states that the IAS could be accessed by employers and doctors. It would provide rapid and expert fitness-for-work advice about individuals on long-term sick leave, offering advice about what help, if any, is needed to support a return to work. Although there is clearly a need to tackle sickness absence, it remains to be seen how effective, or, indeed, "rapid" a new layer of administration could be, given the complexities surrounding long-term sickness absences.
The review also contains a chapter devoted to sickness absence in employment. Interestingly, the review acknowledges that there are other areas of employment law that clearly impact on employers' management of sickness absence. The review is also clearly "on message" with other Government proposals. It urges the Government to consider the introduction of a new, more efficient route to costly compromise agreements when ending an employment relationship, where "sums paid are laid down in law" as well as options around the use of "protected conversations" to allow employers the chance to have an honest, without prejudice conversation with staff about their condition. The review also suggests the Government reconsider the ban on pre-employment health questionnaires and, given that the Government is already looking at discrimination compensation, do more to raise awareness of the reality of tribunal awards among both employers and potential claimants.
With 140 million working days lost to sickness absence each year, there is certainly a need for a radical approach and many employers will feel that this review is long-overdue. The TUC, however, have stated that, "however well-intended this report, there is a danger it will be seized upon by some rogue employers as an excuse to force people back to work before they are good and ready". Unfortunately, it may be some time before we know which recommendations will be taken forward - the Government will now undertake a comprehensive assessment of the review’s findings with the view to publishing a response during 2012.
One immediate note of caution is that the "worst performing" employers measured only by reference to days lost to staff sickness absence may be the "best performing" employers in terms of the recruitment and retention of staff with long term health problems and disabilities that require time off work.
The review was led by David Frost and Dame Carol Black (who authored "Working for a healthier tomorrow" in 2008 which recommended the introduction of "fit notes" and a national "Fit for Work" multi-disciplinary advisory service rather like an independent employee assistance programme). It makes a number of recommendations to improve sickness absence, including the following:
• The Government should fund a new "Independent Assessment Service" (IAS). The IAS would provide an in-depth assessment of an individual's physical and/or mental function. It would also provide advice about how an individual on sickness absence could be supported to return to work. This service would usually be accessed when an individual's absence spell has lasted around four weeks.
• The Government should revise fit note guidance to ensure that judgments about fitness to work move away from only job-specific assessments.
• Expenditure by employers targeted at keeping sick employees in work (or speeding their return to work) such as medical treatments or vocational rehabilitation should attract tax relief.
• Record-keeping obligations under SSP should be abolished, helping to reduce employer administrative burdens.
• The Government should update its Employers Charter to address misconceptions around sickness absence management, especially legal uncertainty.
• Public sector employers should take immediate action to bring the worst performing parts of the public sector up to the standards of the best. The Government should also review occupational sick pay in the public sector.
• A new "job-brokering" service should be introduced to help long-term sick employees find new work (where appropriate) before they fall onto the benefits system.
One of the most radical recommendations is the IAS. The review states that the IAS could be accessed by employers and doctors. It would provide rapid and expert fitness-for-work advice about individuals on long-term sick leave, offering advice about what help, if any, is needed to support a return to work. Although there is clearly a need to tackle sickness absence, it remains to be seen how effective, or, indeed, "rapid" a new layer of administration could be, given the complexities surrounding long-term sickness absences.
The review also contains a chapter devoted to sickness absence in employment. Interestingly, the review acknowledges that there are other areas of employment law that clearly impact on employers' management of sickness absence. The review is also clearly "on message" with other Government proposals. It urges the Government to consider the introduction of a new, more efficient route to costly compromise agreements when ending an employment relationship, where "sums paid are laid down in law" as well as options around the use of "protected conversations" to allow employers the chance to have an honest, without prejudice conversation with staff about their condition. The review also suggests the Government reconsider the ban on pre-employment health questionnaires and, given that the Government is already looking at discrimination compensation, do more to raise awareness of the reality of tribunal awards among both employers and potential claimants.
With 140 million working days lost to sickness absence each year, there is certainly a need for a radical approach and many employers will feel that this review is long-overdue. The TUC, however, have stated that, "however well-intended this report, there is a danger it will be seized upon by some rogue employers as an excuse to force people back to work before they are good and ready". Unfortunately, it may be some time before we know which recommendations will be taken forward - the Government will now undertake a comprehensive assessment of the review’s findings with the view to publishing a response during 2012.
One immediate note of caution is that the "worst performing" employers measured only by reference to days lost to staff sickness absence may be the "best performing" employers in terms of the recruitment and retention of staff with long term health problems and disabilities that require time off work.