26 October 2009

Employment news - autumn: Can work? Should work - The Government's recent consultation on ‘fit notes'

The Government's recent consultation on ‘fit notes' shows a planned shift in emphasis towards finding ways in which workers with physical or mental health conditions can still perform some work. However, as a recent case shows, there will be challenges for employers, particularly where the issue relates to mental health. Government consultation has recently been concluded.

The background to the consultation was Dame Carol Black's 2008 report, Working for a Healthier Tomorrow. Her report highlighted the substantial losses caused by both sickness absence and presenteeism – sickness absence alone costs UK business an estimated £13 billion every year. The report championed a change in perspective, away from the traditional way of thinking that a worker is either sick and should therefore not be at work, or conversely is not sick and should be 100% productive. This, clearly, is not a realistic view – not only do people tend to recover from sickness gradually, but illness may affect a worker's ability to do part, but not all, of their job. For instance, a post office worker with a broken leg would be unable to unload mail sacks from a van, but may be able to sort mail whilst sitting.

Amongst other proposals, the report recommended the reform of the process by which employees are ‘signed off sick', by giving GPs the option to certify employees as being fit to undertake some work. The consultation document includes a number of observations in support of these proposals. It points out that workplaces are generally safer and less physically demanding than when the current ‘signing off' system was introduced when the NHS was founded, and that most employers are more flexible and capable of implementing simple, low cost changes to help people work.

Regulations to implement the new ‘fit notes' are expected to come into force in April 2010. From that time onwards, GPs will not only be able to state whether or not an employee is able to work but also whether they ‘may be fit for some work'. If this middle ground is chosen, the GP may also state whether the employee would benefit from a phased return to work, altered hours, amended duties and/or workplace adaptations. The consultation paper envisaged that these changes would only be made with the agreement of the employer and the employee. Employers will also need to take into account their duty to make reasonable adjustments to an employee's duties and hours and place of work under the Disability Discrimination Act when deciding how to respond to a GP's recommendations.

The consultation paper also drew attention to the question of mental ill health, commenting that ‘stigma is increasingly recognised as a major barrier for those with mental health problems and this can be overcome by appropriate advice to employers on working capacity'. The difficulties employers can face in identifying and dealing with mental ill health issues were highlighted in a recent High Court decision in Cheltenham Borough Council v Laird. The case highlighted the level of care employers should take when identifying in potential recruits pre-existing or historic medical conditions that may affect their ability to do the job. This information will be essential for an employer trying to assess the extent to which adjustments can or should be made to roles and/or the work environment, particularly when they need to accommodate a condition that amounts to a disability.

Mrs Laird completed a medical questionnaire having been offered the position of Managing Director with Cheltenham BC, the offer being subject to medical clearance. Mrs Laird's response to the questionnaire made no reference to any history of depression, stress-related illness, or of taking antidepressant medication. As a matter of fact, however, Mrs Laird had suffered from depression and anxiety in the five-year period prior to her employment with the Council. The dispute in the High Court dealt primarily with the Council's claim for nearly £1m (being the costs of internal disputes and sums paid to Mrs Laird as sickness retirement benefits) – a claim rejected by the Court on the basis that Mrs Laird had not negligently and fraudulently misrepresented her fitness for work, as alleged by the Council.

However, the main point of interest in the case was the fact that the Council in this case was let down by its own inadequate questionnaire. In particular, the questionnaire lacked a ‘sweep up' question such as: ‘Is there anything else in your medical history or circumstances that might affect our decision whether or not to employ you?' Had such a question been included, Mrs Laird would have been obliged to disclose her previous medical history in full, thereby leaving the Council able to make an informed decision as to whether to employ her, subject to its duty to make reasonable adjustments.

The question then arises of what an employer should do with such information. Employers need to be careful to ensure pre-employment health screening checks provide the medical information needed to show whether a potential recruit is in fact suitable for employment and whether the employer needs to make any reasonable adjustments. However, in the case of mental ill health this can be a considerable challenge for an employer. Employers may take the view that a person with a history of mental ill health may not be able to withstand the stresses and demands of the job in question. However, the advent of ‘fit notes' may well mean that employers will have to tackle the difficult issue of adjustments for mental ill health in an entirely different manner. Plainly, it is the intention of the Government that the well documented stigma attached to mental ill health should be confronted. The advent of fit notes will be the first practical measure that forces employers to deal with this difficult issue.

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