Managing ill-health at work is a challenge for employers because it means balancing the needs of the affected employee, the effect on other employees (who may have to cover), the cost and the employer’s ability to deliver on its customers’ needs.
Where that balance lies depends not only on the individual circumstances of each case but also on broader factors including employer brand, demographic changes (the ageing workforce and the challenges that brings), sick pay entitlement and the legal framework. In its latest consultation, ‘Health is everyone’s business’, the government has set out its thinking on four key areas affecting health at work.
Employers are already under a duty under the Equality Act 2010 to proactively consider making reasonable adjustments in the workplace for disabled employees. The consultation considers introducing an additional right for employees who have been absent from work with ill health for four weeks or more to request workplace modifications. This is intended to operate in a similar way to the right to request flexible work – the employer will be able to refuse a request on legitimate business grounds.
Whether a particular employee will have the right to have reasonable adjustments made or to request workplace modifications would depend on the length of any absence and/or whether the employee qualifies as a disabled person under the Equality Act (which is not always a clear-cut matter).
The operation of two parallel rights has the potential for creating confusion and legal risk. The alternative would be to extend the right to request reasonable adjustments to all employees experiencing long-term ill-health.
Encouraging early intervention
The consultation considers strengthening statutory guidance to encourage employers to make early and proportionate efforts to support employees in a return to the workforce before any dismissal can take place.
It is not clear whether any statutory guidance or code would apply to all employees or only those who already have unfair dismissal protection. If it applied to all, that would significantly widen employment protections. In any event, it is difficult to see how any guidance could do much more than set out the process to be carried out before any decision to dismiss and the factors that should be taken into account when making it, given that individual cases vary so widely.
Statutory sick pay
The consultation considers allowing statutory sick pay to be paid (pro rata) during phased returns to work, as well as simplifying the rules on qualifying days. It also proposes to extend SSP eligibility to those below the lower earnings limit. Payment would be at 80 per cent of wages.
Occupational health provisions
The consultation discusses a number of wide-ranging options for intervention in the occupational health market to increase the provision of occupational health services, and encourage innovation and the development of quality standards. The consultation recognises that SMEs, in particular, find it difficult to access occupational health advice and that there is a need to support them in making purchasing decisions. While not committing, at this stage, to offering financial support, the consultation seeks views on how co-funding could work.
The consultation is looking in to a wide range of measures intended to help employees with health issues remain in the workplace for longer and to support employers to facilitate that. The key will be ensuring any measures adopted do not also create unnecessary additional administrative burdens for employers or unintended legal risks. The consultation closes on 7 October 2019.
Annelise Tracy Phillips is a senior associate in the employment law team at independent UK law firm Burges Salmon