Employers should review their procedures and contracts of employment to match the new Government-funded initiative ‘Fit for Work’.
For employers, the aim of the service is to help manage the impact that sickness absence can have on the business, by providing advice and occupational health assessments for employees who are off for more than four weeks.
Employees will normally be referred by their GP, but an employer can make a referral to Fit for Work after four weeks of absence. An occupational health assessment will be undertaken, usually by telephone, with the aim of producing a Return to Work plan designed to get the employee back to work.
But the employee has to consent to the referral in the first place, and also has to agree to the plan being shared with their employer and GP.
The plan can be accepted by employers as sufficient evidence of sickness for Statutory Sick Pay purposes in place of a Fit Note, but the employer is not obliged to accept the plan or implement any of its recommendations. However, there would need to be a good reason to reject any recommendations and employers may need to consider obligations under the Equality Act 2010 to make reasonable adjustments where disabled employees are involved.
Said Managing Partner Ray Crudgington of Grant Saw Solicitors, “Where recommendations have been made in a Return to Work plan, if an employer doesn’t respond or make the proposed adjustments, it could be picked up by a tribunal if there were any later claim by an employee under the Equality Act. So, even where the employee isn’t thought to be disabled, employers need to give any Fit for Work plans careful consideration.”
He added: “Employers should also think about reviewing sickness absence policies and procedures to reflect the services coming from Fit for Work. So, for example, it would be sensible to say that employees should cooperate with any referral to Fit for Work, whether it’s by their GP or via the employer.
“As there is nothing that employers can do if an employee refuses to take part in the Fit for Work service, the only option might be to withhold company sick pay – as distinct from SSP – so it’s worth setting out that any refusal to cooperate could result in any sick pay due under the contract of employment being withheld.”
This is not legal advice; it is intended to provide information of general interest about current legal issues.