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Education briefing – Government consults on changes to the law to support employees who are managing health conditions or returning from sickness absence

  • United Kingdom
  • Education - Briefings

08-08-2019

Amongst the various consultation exercises commenced by the Government in July 2019 was one dealing with sickness absence in the workplace. “Health is everyone’s business” seeks views on different ways in which the Government and employers can take action to reduce ill health-related job loss.

The consultation closes on 7 October 2019 and sets out a number of proposals, including measures to reform the occupational health market to support employers to purchase high quality and cost-effective OH services and ensuring that small employers and self-employed people have access to the right support and advice in managing health at work. The most relevant section for institutions is chapter two which looks at possible changes to the legal framework.

These proposals are designed “to encourage early and sustained employer support” and the ideas considered include:

• introducing a right for non-disabled employees to request workplace modifications

• strengthening statutory guidance for employers to encourage early intervention to support a sick employee to return to work

• reforming Statutory Sick Pay to allow for greater flexibility in returning to work following sickness absence

We look at each of these in turn below.

The right to request workplace modifications

The consultation says it is important that the legal framework encourages all employers to take positive action to support their employees who are managing health conditions, or who are experiencing or returning from sickness absence, in light of evidence to suggest that some individuals may be dismissed before an effort is made to reintegrate them.

Therefore, the Government is seeking views on whether to introduce a new right to request workplace modifications on health grounds. It is worth noting that the consultation document makes it clear that when it uses the term “workplace”, this includes both the way that an employee works, such as their working hours, and their physical workplace.

Although employers already have a duty under the Equality Act 2010 to make reasonable adjustments for disabled employees, the Government points out that some employees who may benefit from workplace modifications will not be covered under the existing duty because they do not meet the definition of disability. The consultation gives as examples of those not disabled, individuals with temporary or fluctuating conditions that do not have a substantial and long-term adverse effect on normal daily activities.

The consultation makes it clear that the proposed new right is not intended to have any impact on the existing protection under the Equality Act 2010, as it would be distinct from, and in addition to, the duty to make reasonable adjustments. Its purpose would be to increase the number of employees able to benefit from workplace modifications. The consultation states that the two protections should complement each other in supporting employees with health-related needs and “align as far as possible, without causing confusion between the two or increasing the chance of unintended consequences”.

If such a new right were to be introduced, the intention is that the process would be similar to the right to request flexible working, and therefore the employer would be able to refuse the request on legitimate business grounds. If an employee considers that their request has been unfairly refused, or due process had not been followed, the intention is that they should initially use their employer’s grievance procedure. However, if they were still dissatisfied then they could bring a claim in the employment tribunal in a similar way to claims under the legislation on the right to request flexible working.

It is also proposed that a Code of Practice would be published which would set out in more detail the timeframe within which an employer would be required to respond to a request and the business reasons that could be appropriate for refusal.

Amongst the questions asked in the consultation exercise are:

Who should be eligible to request workplace modifications?

• any employee returning to work after a period of long-term sickness absence of four or more weeks?

• any employee with a cumulative total of 4+ weeks sickness absence in a 12 month period?

• any employee returning to work after any period of sickness absence?

• any employee who is able to demonstrate a need for a workplace modification on health grounds?

• other?

How long should an employer have to consider and respond formally to a statutory request for a workplace modification?

• 0-4 weeks?

• 5-8 weeks?

• 9-12 weeks?

What should constitute legitimate business reasons for an employer to refuse a request?

• the extent of an employer’s financial or other resources?

• the extent of physical change required to be made by an employer to their business premises in order to accommodate a request?

• the extent to which it would impact on productivity?

• other?

Strengthening statutory guidance

The Government says there is “strong evidence” that early intervention and sustained workplace-based support during sickness absence is important but that basic, good standards of supporting employees during sickness absence are not universally adopted.

Interestingly, the consultation document suggests the Government has been considering whether to introduce more prescriptive requirements to enable dismissal for ill health capability to be fair – referring to the provision in German legislation that where an employee is sick or unable to work for more than six weeks (either continuously, or cumulatively over 12 months), an employer has a legal obligation to offer a discussion with the employee to try and identify work-related barriers, any possible solutions to overcome these, and to draw up a formal return to work plan.

However, the Government believes that introducing more explicit requirements in the UK, such as statutory return to work plans, would be too prescriptive and be burdensome on employers, so it is not pursuing such changes. Instead, the Government is considering a less prescriptive approach which it believes is more in line with existing UK employment law, namely strengthening statutory guidance to encourage employers to “take early, sustained and proportionate steps” to support a sick employee to return to work. It is envisaged such guidance would provide more legal direction than currently exists, particularly on the principle of providing support early during a period of sickness absence.

The Government believes that strengthened statutory guidance could aid the return to work process by supporting employers to identify and, where reasonable, to remove barriers preventing a return to work, promote the principle of good line management support and explore the “important responsibility” of the employee to meaningfully engage with their employer to facilitate a return to work. The intention is that the guidance would avoid being too prescriptive, or seeking to create a step-by-step process, but should provide clear direction.

In addition to asking whether it is agreed there is a case for strengthened statutory guidance, the consultation asks whether it should be principle-based (providing employers with sufficient clarity

on their obligations) or should set out more specific actions for employers to take.

Reforming Statutory Sick Pay

The Government’s intention is to reform Statutory Sick Pay (SSP) so that it is available to all employees who need it, is more flexible in supporting employees and is underpinned by a suitable enforcement framework.

In terms of flexibility, the Government says it will amend the SSP regulations so that an employee returning from a period of sickness absence to a phased return to work will receive part salary and part SSP. Currently, of course, payment of SSP stops when an employee returns to work on reduced hours. It is also the intention that any part-days of sickness absence would not count towards the 28-week maximum SSP entitlement.

Therefore, on a phased return, the employer would pay the employee the appropriate salary for the days or hours they can work, plus a percentage of SSP for the days or hours that the employee would normally work but is not well enough to do so. The new rules would apply after two or more weeks absence – on the basis that a phased return is less likely to be necessary following a shorter absence. Where the employee is entitled to occupational sick pay, employers should ensure that they calculate pay using this pro rata approach “as a minimum”. It will, however, be for an employer and employee to decide whether a phased return to work is appropriate.

On widening eligibility for SSP, the Government is looking at removing the requirement that employees must be earning at least the Lower Earnings Limit (currently £118 per week) and, if so, providing that those earning less than this receive a payment of SSP based on 80% of their salary. Those wishing to respond to the consultation exercise are asked if they agree with these 2 proposals.

In relation to enforcement, the consultation document says that there are indications that some employees are not receiving SSP when they are entitled to it and are claiming welfare benefits instead. The document asks whether the Government should take a more robust approach to fining employers who fail to meet their SSP obligations and whether the enforcement approach for SSP should mirror National Minimum Wage enforcement.

The Government is also looking at simplifying the rules in relation to qualifying days. Currently, SSP is paid from the fourth qualifying day of sickness absence, with the first three days being “waiting days”. This means that the employee is entitled to SSP from the fourth contracted working day of absence. The Government believes that the rules around qualifying days can be confusing where an employee works a varied or alternative working pattern each week – here the employer and employee may agree which days of the week will be considered as working days. It, therefore, is proposing that every day of the week (except those days where no employees are required to work) could be considered a qualifying day, with the result that an employee is entitled to SSP from the fourth day on which they would have worked had they not been absent due to sickness. The consultation asks whether the removal of rules requiring identification of specific qualifying days would help simplify SSP eligibility.

Finally, the Government states that, although there are no plans at this point to change the rate or length of SSP, it is interested in views on the impact of the rate and length of SSP on employer and employee behaviour and decisions. So this may be something the Government looks at in the future.

Comment

The most eye-catching proposal is that concerning the right to request workplace modifications. It will be interesting to see how, if introduced, this will in fact sit alongside the duty to make reasonable adjustments and how, if at all, it will alter the way institutions deal with request for a change to working arrangements on health grounds.

In many cases, in our experience, institutions faced with a request for a health-related adjustment will not necessarily explore whether the person is disabled (though in some cases that may be clear), but instead concentrate on whether the proposed adjustment is reasonable and accommodate the request if they can. To that extent, the introduction of a new right to request workplace changes on health grounds which do not amount to disabilities may not impact significantly on established practice.

However, a possible consequence of this proposed legal change is that the question of disability status may become more central and contentious, given that the employer’s ability to reject the request under the proposed new right would be greater than in the case of reasonable adjustments under the Equality Act 2010. Employees may, therefore, continue to prefer to pursue requests for workplace changes on the basis of disability and reasonable adjustments in order to access “stronger” rights. As a result, should legislation be introduced as proposed, there may be a dispute as to whether a request for workplace changes on health grounds properly comes under the new process or is, in fact, a request to make reasonable adjustments. A refusal of such a request could potentially be challenged as a failure to make reasonable adjustments and, in the alternative, as a breach of the new right.

Changes to the SSP regime may well assist in managing a return to work, especially the introduction of a pro-rata entitlement to SSP during a phased return.

There is no indication of a timeframe for the introduction of any changes to the legal framework. Given that the consultation runs until 7 October, it may be next year before we have any further clarity. We will monitor developments and provide a further briefing once the outcome of the consultation is known.

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