Mon 12 Aug 2019

"Health is everyone's business" - a step too far?

The Government has launched a consultation paper on new legislation designed to tackle the problem of "ill-health related job loss".

The paper, called "Health is everyone's business", is predicated on the basis that people are living and working longer, as a result of which employers need to be fully equipped to support those who are either disabled or experiencing long-term health conditions.

Stopping there, one might legitimately ask oneself - "Is it not the case that disabled employees and those with long-term health conditions already have protection under the Equality Act?" And you'd be correct - they do - employers already have to make reasonable adjustments for those employees. So what else is the consultation paper contemplating?

"We want to boost the support that government provides and focus on encouraging early and supportive action by employers for their employees with health conditions" says the Ministerial Foreword.  So what is on offer? Well, views are being sought on the following:-

  • Employers should support employees with health conditions who are not already covered by the Equality Act in order to support them to stay in work;
  • Introducing a right to employees to request workplace modifications where they are not covered by the Equality Act to encourage more employees to seek support;
  • Strengthening statutory guidance which prompts employers to demonstrate that they have taken early, sustained and proportionate action to support employees' return to work. Reference is made to the success of the German model which requires all employers to offer an internal occupational reintegration programme, no matter what type of illness they have;
  • Reviewing the current system of Statutory Sick Pay (SSP), so that phased returns can take place, eligibility is widened and there are strengthened enforcement provisions, such as fines;
  • Rebating SSP to SMEs in return for good practices;
  • Co-funding Occupational Health services for SMEs;
  • Encouraging a significant increase in the number of OH specialists and an improvement in standards;
  • Automatic reporting of sickness absence by employers to Government via payroll.

Many of my employer clients will read this list and  consider that the obligations being imposed on them outweigh the support on offer. An extension of Equality Act-style rights to all, put together with a right to request modifications (enforceable by Tribunal action), together with a new set of guidance to comply with and an obligation to pay SSP to more people (enforceable by way of a fine), with the ability of the Government to check via your payroll may not feel that "supportive".

Ask any employment lawyer and they will tell you that the employee relations issue which employers struggle with most (in terms of trying to get an employee engaged in a process, and knowing how far they have to go) is the duty to make reasonable adjustments under the Equality Act. It is not straightforward and if you get it wrong, it is potentially incredibly expensive. The problems rarely involve accommodating employees with recognised disabilities, or managing employees who suddenly find themselves diagnosed with a condition which impacts their daily activities. Problems arise because employers are commonly expected to have realised that someone is potentially disabled without specifically being told that by the employee, and whether adjustments can or cannot be accommodated comes down to a test of reasonableness which, of course, an Employment Tribunal might well disagree with. Hurdles are jumped over and over and over, often with no light at the end of the tunnel for either party.

And, commonly, it is not that employers don't want to make modifications for people who are genuinely ill. Most employers are desperate to get their employees back into work as quickly as they possibly can, within the confines of their medical condition. The problem is often that the absent employee does not communicate, does not engage in the process unless forced to do so or, even more commonly, blames the employer/colleagues for their ill health and engages in a circular argument about not being fit to return until the workplace issues are resolved, but not being fit enough to engage in a process of resolving the workplace issues.

Personally, I am a great supporter of workplaces accommodating people from all walks of life. I too recognise that we are an ageing population, about to divest ourselves of a very useful source of labour in the form of migrant workers, and we are going to have a problem if we don't encourage people to stay in work for as long as possible. But that is not resolved by forcing procedures to take place for every conceivable absence of every conceivable employee. It comes from changing mindsets about the value of older workers (after decades of making people retire at a fixed age). It comes from encouraging healthy working environments where employees feel engaged, appreciated and valuable from the moment they step across the threshold. It comes from making them realise that their presence adds real value and that they would be missed in their absence, and that if they have to be absent at times then the employer will be there to understand that and to do everything possible to help out. And if that becomes long-term, then the employer will be there for as long as can reasonably be expected. That requires time and effort and, in many instances, a change of workplace culture. It will not happen overnight.

We will be responding to the Consultation, the deadline for which is 7 October 2019. Should anyone wish their views taken into account, they can respond directly, or feed them in to us, and we will reflect the various views in our response.

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