The Fit for Work Service

The Government’s Fit for Work Service is due to launch by the end of May 2015. Andrew Davidson and James English look at its potential impact.

The Fit for Work Service scheme follows the consultation (and a change of name from “Health and Work Service”) prompted by Dame Carol Black’s recommendation in November 2011 of a government-funded Occupational Health assessment service to support a return to work for absent employees.

The Government has just published guidance, developed in conjunction with ACAS, for Employers, GPs and Employees, which can be found here. 

What is it?

Fit for Work is a free service manned by experienced OH professionals. The scheme is open only to employees who are absent from work, not self-employed or agency workers. The key features are:

• Referrals can be made by GPs or employers. An employer can refer an employee if they have been absent for at least 4 weeks, but a GP may do so earlier if they judge it beneficial. There can only be one referral per employee in any 12 month period.
• The employee must consent at every stage of the process.
• Assessment will be by telephone with a Case Manager (with face to face assessments expected only in a minority of cases), with advice also provided online. The assessment is described as a “bio psychosocial holistic assessment” which, of course, all employers will be more than familiar with! The assessment will include personal and social issues that go beyond the workplace. There may also be more than one assessment if it is appropriate. 
• The Case Manager will then prepare a Return to Work Plan which will suggest, where appropriate, what the employer can do to assist a return for the employee. This plan can stand in place of a GP’s fit note for the purpose of SSP. The guidance states that employers will be “encouraged” to act on the recommendations but they will not be mandatory, and that the Case Manager will help to facilitate the recommendations with employers. If the employee fails to engage with the plan or return to work, it will then be for the employer to deal with this situation. 

The Guidance for Employers recommends that they update their sickness absence policies to reflect the new scheme, and that staff are informed about it too. 

In a separate move, medical treatment recommended either under a Return to Work plan, or by a healthcare professional in an existing OH service, will be tax (and NIC) exempt up to the value of £500.

How will it work?

We will have to reserve judgement until the service is up and running. In some cases it may be very helpful to employers and may give an early indication of what reasonable adjustments might be needed in each case. There are obvious limitations to an over-the-telephone OH assessment particularly in cases involving multiple and/or complex conditions. In addition if the referral comes from the GP there is likely to be very limited information available to the Case Manager about the workplace and the employee’s working conditions. That could easily lead to unrealistic and unhelpful recommendations being made. 

Though employers will not have to implement the recommendations, employees will undoubtedly complain if they are not put in place and this could be evidence in a subsequent reasonable adjustments claim. The difficulty here is that even if an employer complies with the plan in full, it may not prevent a discrimination claim. On the other hand, the failure to comply may not be discriminatory particularly where the assessor did not fully understand the employee’s working environment. 

In the end, the Fit For Work service may simply turn out to be like the introduction of Fit Notes – not a terrible development for employers but not especially useful either.

Andrew Davidson and James English are both legal experts for health and social care law firm Hempsons.