Last week the government announced proposals for new legislation aimed, it stated, at “reducing ill health related job loss”. The proposals may have been lost for many in the news black hole that is Brexit but the consultation document “Health is everyone’s business: Proposals to reduce ill health-related job loss” contains some important proposals that could have a very significant effect, not simply by introducing new rights, but also by affecting those that are already familiar. Catherine Casserley, a specialist discrimination barrister at Cloisters, considers the government proposals further here.
The purpose of the proposals is to address the considerable number of people who are at risk of falling out of work through an absence that is unaddressed. Evidence shows that early intervention by an employer for employees at risk of, or on, long-term sickness absence is important in reducing ill health related job loss. As the document states, however, there is little in the UK system to encourage employers to take action early in the sickness absence period, or when someone is at risk of going on sickness absence.
But there is also a confusion running through the consultation. At various points, it interchanges the terms those with “long term health conditions”, “disabled people” and “employees with health conditions”. As those practising in employment law will be aware, the definition of disability in the Equality Act 2010 is one that is relatively easily met, given the comparatively low threshold for “substantial” disadvantage, the disregarding of treatment for the purposes of adverse effect and the coverage of fluctuating and recurring conditions.. Thus, in reality, many of the employees that the consultation seeks to address will already be covered by the rights and obligations contained in the Equality Act 2010. This is important because the purpose of the consultation appears to introduce a new regime for people who are unwell but not disabled and accordingly covered by the positive obligations contained in the Equality Act 2010.
The government proposes that it will do the following:
- Introduce a right to request work(place) modifications for employees not covered under the duty to make reasonable adjustments under the Equality Act 2010
- Strengthen statutory guidance for employers to encourage early intervention to support a sick employee to return to work
- And reform statutory sick pay to allow for greater flexibility in returning to work following sickness absence
Right to request Workplace modifications
Insofar as eligibility for this new right is concerned, the consultation provides examples of those who may not be covered by the definition of disability – such as those with temporary or fluctuating conditions that have not had a substantial and long term negative effect on normal daily activities – stating that they are less likely to receive modifications. The evidence on which this is based is self-reporting by those on ESA. There is no analysis, however, of whether in fact these people would have been entitled to such adjustments because they were disabled but were not given them simply because neither they nor their employer knew that they were so entitled.
The proposal made is that eligibility for this right could be restricted to those who have experienced a long term sickness absence of four or more weeks; or those with a cumulative total or four or more weeks of absence; those returning to work from a period of sickness absence of any length or any employee who can make the case for a modification on health grounds.
Examples of the types of modifications that might be made are having a conversation about the employee’s needs; keeping a written record of conversations; seeking expert advice from occupational health; and modifications to working hours, tasks or to the physical environment.
Unlike the duty to make adjustments, but like the request for flexible working, this right could be refused on legitimate business grounds. The employer and employee would agree between them where it is reasonable what the modifications should be; a code of practice could support it and the code would set out in more detail the business reasons that could be appropriate for refusal and in what timeframe an employer would be required to respond.
Enforcement would be via the tribunals.
The second proposal is to strengthen statutory guidance to encourage employers to take early, sustained and proportionate steps to support a sick employee to return to work, before that employee can be fairly dismissed on grounds of ill health affecting their capability – thus a change to unfair dismissal legislation. The core test of whether an employer had acted reasonably would be maintained “to account for the specific and varied circumstances of each employer”.
Statutory sick pay
The government is proposing a reform of SSP so that an employee would be able to receive part wage and part SSP instead of the binary approach at present, to encourage a phased return to work. There is also a proposal to extend SSP to those earning below the Lower Earnings limit.
There are also proposals regarding occupational health provision, and its approval as well as advice and support for employers.
Proposals which support people back into work and help to maintain them in work is something that is always to be welcomed. But as those practising in the employment tribunals will know, awareness of the rights and obligations under the Equality Act 2010 in relation to reasonable adjustments remains patchy It would have been helpful to see something which addressed this, as well as new provisions which have the potential to, unless very carefully handled, undermine (and even confuse) the very substantial rights already in place. The consultation runs until 7 October 2019.