Fit and able? Q&As on 'Fit for Work'

Are you ready for the new 'Fit for Work' regime?  A phased roll-out of the new scheme has already started, and will be completed by the end of May 2015.  Full employer guidance on the service was published this month, and the first test referrals are now being made. James Gutteridge answers key questions on how 'Fit for Work' will operate in practice.

The scheme in outline

One of the key findings of a government-commissioned report, 'Health at work', was that after four weeks’ absence, many employees slip into long term absence, despite evidence that early interventions are highly effective in preventing this from happening.  In response, the government has established a new 'Fit for Work' (FFW) service (originally called the 'Health and Work' service), with the purpose of providing a free occupational health advice and assessment service for GPs, employees and employers.

In December 2014, the Fit for Work website and helpline became operational, and this month the government has published three guidance notes on how the scheme operates,

• for GPs
• employers; and
• employees.
  

This month, a team of GPs in Sheffield has received the first referrals under the new service, and their experiences will feed into the nationwide roll-out of the scheme this Spring.

FFW questions and answers

Who will make referrals to FFW?

Referrals to FFW will normally be made by an employee's GP. However, referrals may also be made by employers.

What are the criteria for use of the FFW service?

Usually, the service will be available after an employee has been absent for four weeks or more and there is a likelihood of at least a phased return to work.  However, a GP may make a referral before four weeks if they judge that the employee will be absent for at least four weeks and that a referral may be beneficial.  The focus is very much on return to work, so it would not normally be appropriate for the FFW service to be used, for example, if an employee is in an acute phase of an illness, or is hospitalised or on long-term sick leave with no realistic prospect of returning to work. Neither will the service be available for employees with multiple short term absences.

Do employees have to be certified as on sick leave in order to be eligible to use FFW?

No, self-certified sickness will be sufficient.

Is referral to FFW required by law?

No, referral is optional.

What happens once an employee is referred?

FFW will contact the employee to undertake an assessment, usually by telephone, with a view to creating a Return to Work Plan (RWP). If a face-to-face assessment is necessary (expected only in a minority of cases) it will take place within five working days of this being decided and the employee can claim reasonable travel expenses from the FFW provider. If the employee is unable to travel, alternative arrangements will be considered (presumably a home visit, but the guidance does not specify).

What does an assessment involve?

The assessment will be carried out by an "occupational health professional", and will involve a "holistic or 'biopsychosocial' approach", looking at health, work and other personal / social issues that may be affecting the employee's ability to return to work.

What happens after an assessment?

The RWP will be shared with the employee and sent to employers (if the employee consents), usually by email. A RWP will cover a specified period of time and will state whether an employee is fit for work or whether they may be fit for work, subject to their employer being able to follow certain recommendations. Where appropriate it will include a timetable to achieve a return to work.

Are employers required to follow a RWP?

This is not a specific legal requirement, so it remains for the employer to decide whether to implement any recommendations in a RWP. However, the guidance encourages all parties to act on the recommendations. Moreover, a failure to comply with reasonable recommendations could work against employers in any subsequent claims for disability discrimination, failure to make reasonable adjustments, or unfair dismissal.

What is the impact on 'fit notes'?

Fit notes will continue to be used.  However, where a RWP is in place, the guidance suggests that employers should not also require a fit note and GPs are not obliged to issue a fit note in these circumstances. However, if there is a dispute over the RWP or the employee does not consent to their RWP being shared, then a GP may use their discretion to issue a fit note (see page 21 of the employer guidance). A RWP can be accepted as sufficient evidence of entitlement to Statutory Sick Pay.

Will employers be contacted following a GP referral to FFW?

This will not happen as a matter of course, but the employee guidance encourages employees to advise their employer if they have been referred to FFW by their GP. There is not, however, any requirement for them to do so. If the employee consents, their case manager may contact an appropriate individual at the employer - for example, a line manager or member of the employer's own occupational health service - to assist in the creation of the employee's RWP. However, this is only likely to occur if the employee is not able to provide sufficient information or if the relationship between the employer and employee appears to present an obstacle to the employee's return to work.

Is employee consent needed?

Explicit employee consent is required at all stages of the process

• before a referral to FFW
• before the initial assessment takes place
• before each version of the RWP is shared with the GP and employer
• before FFW contacts the GP or employer or any other third party as part of the assessment.

The employee can ask for specific parts of their RWP to be removed before it is shared with their GP or employer. 

Is there any limit on the number of assessments available through FFW?

There is no upper limit on the number of eligible employees that can be referred to FFW by an employer or GP, but an employee can only be referred once for an assessment in any 12-month period.

Will the FFW service replace current occupational health provision?

The intention is that the FFW service will complement current occupational health services. Existing occupational health services may be incorporated into a RWP.

What practical steps do employers need to take now, in order to prepare for this change?

• Consider the arrangements which you will put in place for receipt of RWPs and implementation of any proposals contained in the RWP.
• Be aware of the potential impact of assessments and RWPs on legal liability (see above).
• Review your current policies and procedures and consider whether they need amending in the light of the new service, possibly in consultation with staff. Sickness absence / sick pay policies and procedures, medical consent forms, and equalities policies are most likely to require attention, but other documentation may also be relevant.
• The new FFW service will sit alongside your current arrangements for provision of medical information regarding employees, so you may wish to consider the pros and cons of utilising the new scheme, especially in light of the ability for employees to either fully or partially withhold their consent to a RTW plan being shared.
  

If you require any assistance with incorporating this new approach to sickness into your current policies, procedures and practices, please do contact me, or your usual Bevan Brittan contact.