Employers and the Fit for Work scheme

Be careful – the Fit for Work scheme does not absolve the employer from its responsibilities, writes Victoria Duddles.

On 8 September, the Government’s Fit for Work assessment scheme became fully operational. The scheme, which is aimed at keeping individuals in work and preventing them becoming part of the benefits system, provides health and work advice to employees and their GPs, as well as to employers via a website and a telephone helpline. Further, where the employee has reached the fourth week of absence, an employer or the employee’s GP can refer the employee for an occupational health assessment. All of these are free to both the employee and the employer. 

In addition to this, the Government has introduced a tax exemption of up to £500 per employee per year on medical treatments that are recommended to help the employee return to work. This is whether the treatment is recommended under the Fit for Work scheme or by an employer’s own Occupational Health services.

Where an employee is referred for a Fit for Work Assessment, the employee will be provided with a Return to Work plan providing advice and recommendations to assist his or her return to work. 

Acting on the recommendations

Although the Fit for Work scheme does not compel a Local Government employer to act on any recommendations, not doing so may have consequences. At the very least one consequence could be that the employee remains off sick longer, resulting in increased costs and inconvenience to the employer.

A perhaps more significant consequence could be where an employee has a disability. If the employer fails to act on the recommendations this could result in a claim from the employee that the employer has discriminated against him or her by failing to make reasonable adjustments. Further, if ultimately the employee is dismissed because they remain off work due to sickness, a disability discrimination claim may arise in relation to the dismissal.

Whether or not the employee is disabled, any dismissal could result in an unfair dismissal claim. In deciding whether or not an employee has been unfairly dismissed, the Employment Tribunal will look at not just the reason for the dismissal but whether the employer acted reasonably in dismissing for that reason. If an employer fails to act on the recommendations then, depending on the circumstances, it may be hard for the employer to defend such a claim. Certainly it is difficult to see that an employer would convince a Tribunal it acted reasonably if it hadn’t even considered the recommendations.

For all of the above reasons, the key thing is that when an employer receives any recommendations under the Fit for Work scheme, proper consideration is given as to whether or not they can be accommodated and written records are kept at each stage of the process. If the employer is able to take the steps proposed, all well and good. Where the employer does not believe it can accommodate the recommendations, it should be able to show that it has duly considered the recommendations and explored whether they can be accommodated. If the employer still remains unable to accommodate the employee, having regard to the recommendations, then it should be able to evidence why it is not possible and it is advisable for the employer to meet with the employee to explain this and seek the employee’s view. Consideration should also be given to what outside support may be available, for example, Access to Work. (Access to Work is a Government scheme providing advice and support to assist individuals to remain in work.) A paper trail should be maintained so that the employer is able to demonstrate all these steps.

On-going review

The Fit for Work scheme only provides an employee with one assessment every 12 months, even though the employee may remain off work. Whilst the scheme has limited follow-up, this does not mean it is safe for an employer to just let things lie in the meantime.

Unless one of the recommendations of the Fit for Work scheme is that there should be no contact from the employer for a period of time, the organisation should maintain regular and reasonable contact with the employee throughout their absence.  

This means that unless the employee has returned to work, the employer should continue to review the employee’s health situation by meeting with the employee and listening to his or her ideas as to what can be done to assist any return to work. The employer should also seek medical updates both from the employee’s own GP and as appropriate, from the employer’s Occupational Health provider. This should include continuing to explore whether there are any steps that can be taken  to assist the employee’s return to work and what support, if any, may be available e.g. from charities, Government bodies etc. It is important to recognise that it is the employer who is responsible for managing an employee’s return to work and keeping up to date on the medical situation rather than the employee’s.

Conclusion

For Local Government employers it is good to have this additional resource available to help them reduce absence in the work place but the Fit for Work scheme really needs to be seen as just that, an additional resource. It does not obviate the employer’s responsibility for managing absence, keeping an employee’s health situation under review and looking at what can be done to assist the employee’s return to work. Where the employer is unable to make the recommendations and the employee is unable to return to work, the employer remains responsible for managing the employee’s sickness absence in accordance with good employment practice and, where applicable, having regard to its obligations under the Equality Act 2010.

Victoria Duddles is an Associate at Weightmans LLP. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..