Andrew Moore investigates if a new government scheme to tackle employee sickness absence will be a bitter pill for dental practices to swallow
According to the Office of National Statistics, the average number of working days lost due to sickness absence in 2013 across all sectors of UK business was 4.4 days per worker. However, the Chartered Institute of Personnel and Development, the body that oversees the human resources profession, in its 2013 Absence Management Survey, says that the level of workplace sickness absence has stubbornly stayed at an average of 8.6 days per employee per year. That may sound bad, but the figures for ‘public sector – health’ are noted as being horrendously high at 11.3 days per year per worker on average.
With it being estimated that 960,000 employees are on long-term sickness absences, leading to 130 million working days being lost with a cost of £9bn to businesses, the government is implementing a new scheme aimed at assisting sick employees back into work and helping employers deal with absent staff. On the face of it, the scheme should be welcomed by dental practices, but will it really make a positive difference or will it put more obstacles in the way of managing a business?
From the end of 2014, the government will start to roll out a new, pro-active approach to sickness absence. The Health and Work Service will provide occupational health advice and support for employees, employers and GPs. Its specific objective will be to help people with a health condition to stay in or return to work. It plans to facilitate this through occupational health assessment and follow-up, together with a telephone and online advice service, accessible to employers, employees and GPs.
An aid for businesses
The rationale behind the new scheme is to motivate both employers and employees to review their circumstances once a health issue arises.
Once the service is up and running, dentists will be able to contact a helpline by phone or email and seek advice regarding employee sickness and absence. Although open to all employers, the helpline service is expected to be of greatest benefit to small- or medium-sized businesses.
Dental practices will be able to refer an absent employee for a health assessment after just four weeks (even less in some cases). This should encourage an employee to focus upon returning to work and ways this might be facilitated.
The service will be delivered by occupational health professionals who, as independent third parties, will be expected to look beyond the employee’s primary health condition and explore and understand all the reasons that the employee considers are making them unable to return to work.
No compulsion, but…
Participation in the scheme is not compulsory. However, employees who refuse to engage with the new system risk not being provided with further fit notes from their GPs signing them off work, may jeopardise their right to sick pay and other entitlements, and may place themselves at risk of disciplinary action by their unreasonable conduct.
It is not compulsory for you and your practice to participate in the new scheme either.
All change
The process of an employee undergoing the service’s health assessment itself is expected to be quick and efficient. The intention is that an initial assessment will take place by telephone within two days of the employee’s referral to the service, with a follow-up and an indication of a return-to-work date provided within that same week.
The service will produce a return-to-work plan (normally presented as a timetable), containing specific advice and recommendations to facilitate the employee’s return to work within a specified time frame. However, you should be wary of relying solely upon this plan to justify dismissing an employee. Given that any health assessment is expected to be brief, the return-to-work plan is likely to be viewed by an employment tribunal as a guide only, not definitive. Rejecting the recommendations of the service without proper consideration (and being able to demonstrate such a thought process) could lead to a successful claim of unfair dismissal or disability discrimination in the case of a long-term illness.
Remember, dismissing an employee must be a reasonable sanction in the circumstances, based on what a ‘reasonable employer’ might do. The service will not offer a comprehensive medical review, upon which employers can necessarily rely in reaching such decisions. To effect a fair dismissal, employers are likely to require supplemental medical evidence.
A positive aspect of the new regime is that you are likely to be better informed as to your employee’s health and ability to work, perhaps earlier in the absence, which will allow for greater consideration of your practice’s options such as whether you can make some changes that will get the employee back to work quicker or whether it would be prudent to employ a temp in the interim.
No return?
The government has recognised that not all employees who are absent due to ill-health will be capable of returning to work or, indeed, all employers willing or able to wait for them to return.
It may be that a return to work is not possible. The service will have a role as part of its case management function to identify this potential outcome and the sort of alternative work the employee could undertake for a different employer. They will then refer the employee to a new internet job-matching service.
Be cautious
While the government has been keen to emphasise that the service’s occupational health practitioners will provide a high quality advice and assessment service, for the time being at least, you should be cautious about the quality of the service’s advice and the status of any assessment or recommendation provided.
A common problem for businesses at the moment is that information received from an employee’s GP may contradict that received from the business’ own occupational health consultant. This issue could well be compounded by the brief interaction anticipated between the employee and the service. Where contradictory evidence exists, you should always view all available evidence before any decisions regarding an employee’s employment are taken. Recommendations contained in the return-to-work plan should be treated as advisory only, not conclusive.
Recommendations
The return-to-work plan should contain specific advice and recommendations to facilitate the employee’s return to work as soon as practicable. The plan will replace GP fit notes, temporarily, while it is followed. The service will monitor this and may opt to take over responsibility for issuing fit notes in the future or allow the employee’s GP to do so.
In the absence of the awaited guidance from the government, it is too early to say, definitively, what recommendations a return-to-work plan might make. However, the government recently provided an example case study concerning an employee suffering from stress and anxiety, which suggested steps such as a gradual return to work, a change of work activities and access to therapy and debt-counselling.
If you are thinking that paying for an employee to undergo debt counselling is not something your practice could, or should be expected to do, beware. If paying for the counselling is viewed by an employment tribunal as a reasonable step for your practice to take to help the employee return to work, if the employee is disabled by virtue of their stress and anxiety, the tribunal may find you have failed to make a ‘reasonable adjustment’ and, therefore, have subjected the employee to disability discrimination. If you think that is far fetched, as a word of warning, a tribunal has found that paying for an employee’s psychiatric counselling is a reasonable adjustment for their employer to make.
Outside advice
Once up and running, the service is intended to complement, not duplicate, a business’ own occupational health provision by working with that provider.
If there is a conflict of opinion, it is likely that a more in-depth report from an occupational health consultant retained by and dedicated to your business would carry more weight than the views of the service. Even so, be warned, each employee’s case should be reviewed and assessed on the balance of evidence you have from the service and elsewhere, and you should not blindly accept the opinions of your occupational health consultant and disregard all else.
In summary, the service is expected to help businesses by returning long-term sick employees back to work sooner, which can only be a good thing.
Andrew Moore is an associate at law firm Eversheds in the human resources practice group.
