Time for a quick look at the Guidance issued by the Department of Work & Pensions on the new Fit for Work (FfW) Scheme https://www.gov.uk/government/collections/fit-for-work-guidance.
There are two ways of looking at this. First, that the Guidance is a gallant attempt to explain in simple terms how this Scheme may (I use the word advisedly) work. Or second, that it is twenty-four pages of fluff and repetition (the launch dates appear five times in the first seven pages, for example) plus the substantial number of grammatical and punctuation errors which now seem mandatory in official Government guidance on employment matters. Maybe they have someone whose job it is to take decent English writing and spoil it, just slightly?
However, we should try to rise above the plethora of singular nouns taking plural verbs and look at it the first way, ignoring the faint grinding of teeth that this will cause.
The Scheme provides employers and employees with medical advice and rehabilitation guidance to help people return to work as soon as possible. This has obvious economic value for both company and country (saving on incapacity benefits and sick pay), plus undoubted therapeutic benefits for the employee. It applies to staff who have (i) been off sick for four weeks or more; (ii) a reasonable prospect of making some form of return; (iii) not been through the FfW system in the preceding twelve months; and (iv) consented to their referral to FfW.
Referrals can be made either by the employee’s GP or by the employer. FfW will then make a preliminary assessment (usually based on a phone call with the employee) of all the obstacles to the employee’s successful return. These will include not just his medical position but also any work and personal factors so as to catch “adjustment disorders”, where the employee is reacting to some unhappy situation or relationship at work but is not actually clinically unwell. Based on that assessment (or also with input from the employer, if the employee agrees), the FfW consultant will generate a Return to Work Plan. This will be similar to doctors’ fit-notes in that it will include recommendations to both parties for dealing with those obstacles. The employee must agree to this being sent to the employer. Given that he had to agree to the referral to FfW in the first place and that the Plan is of little help if the employer can’t see it, this seems an unnecessary hurdle. Indeed I think an employer could be justly curious about the contents of a Return to Work Plan which the employee would not let it see, but except in litigation, it would not be able to compel him to produce it.
The Return to Work Plan is a valid substitute for doctors’ fit-notes (you don’t need to get both) but it is expressly designed not to replace employers’ existing internal or external Occupational Health functions. It might be said also that it is no substitute for an open and honest discussion between employer and employee as to their respective needs from any return to work proposal, and employers should not treat FfW as lessening in any way their own obligations (legal and pastoral) to keep in touch with long-term sick staff. The Plan can be updated in the light of developments in the employee’s health or the situation at work, but his fresh consent is required before this updated version can be shared with the employer.
While the aims of the FfW scheme are laudable, it should not be forgotten that “employers will continue to have responsibility for managing absences [and deciding] if the interventions/adjustments are reasonable and affordable”. In other words, FfW does not change the law at all. It will remain the employer’s obligation to consider reasonable adjustments in possible disability cases, and the absence of any implementable recommendation in the Return to Work Plan will not discharge that burden by itself.
The Guidance makes it clear that employers are under no obligation to comply with those recommendations, but does not say (as perhaps it should have done) that if they don’t do so without good reason, potentially very awkward questions could be asked of them in the course of later unfair dismissal or disability discrimination proceedings. Whether the employee is statutorily disabled or not, keeping a record somewhere of why a particular FfW recommendation could not be followed will always be a sound investment of time.