Lasting Powers of Attorney: recent key developments
According to the press, 3 February was “National Sickie Day” (cue a collective groan from employers across the country). Having never before realised that a day had been commandeered by the British public as a quasi-legitimate Duvet Day, I was surprised to learn that businesses were estimated to lose some £34 million as a result. For a country struggling out of the recession, this is worrying.
According to the Department of Work and Pensions, each year approximately 140 million working days are lost to sickness absence, with nearly 1 million people being signed off work for 4-6 weeks. This costs the UK economy a staggering amount of money. Employers spend an estimated £9 billion p.a. on sick pay and associated expenses, whilst the Government spends over £13 billion p.a. on health-related benefits. These figures do not reflect the cost borne by the affected employees themselves, in lost wages.
If current statistics are anything to go by, the situation will only worsen. With an ageing population choosing to stay in work for longer, the general health of our workforce is likely to deteriorate in the coming decades. So, how do we tackle this issue?
The Government’s Pledge
In 2011, the Government appointed Dame Carol Black and David Frost CBE to conduct an independent review of sickness absence in the UK. Their report called for the creation of a State funded Health Assessment and Advisory Service (HAAS) which would assess an individual’s physical and/or mental functions, with a view to getting them better and back into the workplace more quickly and efficiently. Importantly, it was envisaged that HAAS would review the individual’s ability to work (not necessarily to do their job). Early intervention, it seems, is key and the Government has pledged to implement the service on a phased basis from autumn 2014.
However, HAAS (whilst a step in the right direction) has been criticised by some commentators, who are concerned that the Government’s proposals are vague. Broadly, the service will include:
The Practicalities and Potential Pitfalls
The service is intended to operate either in isolation where an employer does not already have an OHP or in tandem with pre-existing providers. It is the “in tandem” approach which is causing concern and queries have been raised as to the extent to which this will be achievable in practice.
For example, where an employer has already retained an OHP, will that employer be obliged to refer employees to the state-funded service as well? What happens if the employee would prefer to use their employer’s OHP (who, arguably, will better understand the employer’s business and the employee’s role within it) or otherwise does not wish to be referred to HAAS?
The Government’s proposals state that “where an employee fails to engage with the service, no further fit notes will be issued” meaning that said individual will be unable to claim statutory sick pay, and will have to return to work upon the expiry of their current fit note. This seems unfair, particularly if the employee has already liaised, or is prepared to liaise, with their employer’s pre-existing OHP. It also raises issues of whether consent is freely given.
Further, what happens if the recommendations of the employer’s own provider conflict with those of HAAS? Whose recommendations “trump” whose? For example, what would happen if an employer failed to implement HAAS’ recommendations, but implemented the reasonable adjustments proposed by its pre-existing OHP? In such cases, would the employee be entitled to bring a claim against their employer on grounds of disability discrimination for failure to implement HAAS’ recommendations, even though other appropriate reasonable adjustments may have been made to facilitate his or her return to work?
A further issue is the extent to which employers may be required to accommodate employees who are unable to do the job for which they were employed (as a function of their illness/condition) but who nonetheless are regarded by HAAS as “fit for work” generally. Although the Universal Jobmatch service ought to assist in this regard, will a penalty be imposed on employers if they are unable to accommodate these individuals? Will employers be exposed to the risk of disability discrimination claims if they cannot find alternative employment for these individuals elsewhere within their organisations?
At a recent conference, the Department of Work and Pensions noted that if an employer already has an OHP in place, HAAS will simply adopt a “soft touch” approach. Yet if so, what is the point of HAAS being involved at all? The purpose of the scheme is to reduce the financial burden of sickness absence on the economy—the doubling-up of OHP services from an employer and Governmental perspective in such cases seems counter-intuitive. This begs the question: why is HAAS not focusing expressly on employers who do not already have OHPs?
For those employers, the Government’s scheme may be welcome news. However, what happens if an employee refuses to accept a HAAS referral, instead preferring to liaise with their GP? Practically, what will the employer be able to do in these circumstances? Will this refusal constitute a failure to follow reasonable management instructions, warranting disciplinary action and possible dismissal? Could the employer begin a capability dismissal?
Also, what will happen if employees take more than 4 weeks’ sick leave per year, but not consecutively? The system could theoretically be abused by those who take a week of leave here, another there, but never have a prolonged period of sickness absence.
Questions also remain about the referral system (how will this work in practice?), whether the UK has sufficient qualified OHPs to be able to provide the service to the standard required, and the usefulness of telephone assessments (which will form part of the initial advisory service assessment mechanism), not to mention funding of the scheme.
The aim of HAAS is laudable. The Government’s proposals are intended to “make occupational health advice more readily available to employers and employees so that they can better manage sickness absence” with a view to reducing the financial burden on all concerned. Employees who are not genuinely sick should be more incentivised to cooperate with HAAS and/or return to work, if to do otherwise means that they will lose their benefits and be refused further fit notes. Those who need professional help to return to work will receive it. Yes, there are some wrinkles which need to be ironed out and the phased implementation date is fast approaching, but if the Government can provide further guidance on how this service will work in practice (not just in theory), then there is no reason why employers cannot plan for the same and manage the health and wellbeing of their workforce more effectively. Roll on autumn 2014.
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