- ‘Fit notes’ to replace the current ‘Sick note’ from April 2010
- Potential Ban on Pre-employment health questionnaires
- New Employer Pension Duties
‘Fit notes’ to replace the current ‘Sick note’ from April 2010
The Government recently published “Reforming the Medical Statement”, which is a consultation on the introduction of the new statements of fitness to work (referred to as ‘fit notes’) through the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 SI 2010/137. It is intended that these are in use by GPs from 6 April 2010.
The concept was first introduced by the Government in March 2008 following a major review of the health of the workforce. The Government announced that it would replace the current handwritten MED3 ‘sick note’ used by GPs with a new ‘fit note’, which will be available in paper or electronic format. GPs will now only be able to certify whether an employee is “not fit for work” or "may be fit for work. The Government sought to change the emphasis of the medical statement to help doctors, employers and employees focus more on what the individual can do rather than just their incapacity. The changes will allow a doctor to consider not only whether their patient is unfit for work, but also whether their patient may be able to do some work based on the doctor’s assessment of the patient’s health condition. The proposed changes are designed to facilitate an earlier, possibly phased, return to work and replace the sick note culture by helping more people stay in work rather than drifting into long-term sickness.
The consultation highlights the Government’s belief that phasing the employee back into the workplace will encourage discussions between doctor and patient and between employee and employer on the potential options that could facilitate that return. Currently, only GPs will be able to issue ‘fit notes’, however the Government did not rule out extending the right to issue to other healthcare practitioners in the future.
The proposals have received mixed comments from employers, employees, health care officials and trade union members alike. The work and pensions minister Lord McKenzie said, “Employers tell us that managing sickness absence can be a challenge. This is compounded by a ‘sick note’ system that makes sickness a black and white issue - either you're unfit or you're not. We recognise how important it is to help people who are sick to stay in work or get back to work quickly - the new fit note will help do just that.” Health minister Ben Bradshaw said, “We know that sickness absence is economically and socially damaging and makes people more likely to drift into social exclusion and poverty. Getting people back into work quicker is good for their health,as well as the country's finances. The fit note will give GPs a new opportunity to benefit their patients and I look forward to it being used in surgeries everywhere.” However, Dr Laurence Buckman, chairman of the British Medical Association's GP committee, said, “The fit note is likely to be misunderstood by doctors and patients alike. It also represents a fundamental shift of our responsibilities to patients. GPs act as their patients' advocates, but we can't do that if we're also expected to be judge and jury, and effectively decide whether or not they get social security payments. That's the role of an occupational health doctor”.
The introduction of the ‘fit note’ will inevitably experience some problems that will need ironing out.. In its current form it does not go so far as to deal with the distinctions between employees on long-term or short-term sick leave, nor does it make clear whether employers would really be expected to incur the expense of workplace adaptations for someone with a short-term acute illness. Employers (especially smaller companies) may also feel forced to accept an early return to work and they may not be able to afford adjustments to the workplace to cater for a partially-fit returner. All of this may lead to conflict between employers and employees over the scope of workplace change. The Government intends to publish further specific guidance for individuals, employers and healthcare professionals shortly.
Potential Ban on Pre-employment health questionnaires
The Equality Bill continues its passage to royal assent, with every sign that this will be achieved before the general election due later this year. However, this does not mean that the content of the Bill has been finalised. Even at this stage important amendments can be made, and January saw such an amendment with the House of Lords moving to curb the use of and reliance upon pre-employment health-related questionnaires by employers.
Currently employers are able to ask job applicants questions on disabilities, mental health or whether they have a medical condition or are taking medication. Opponents argue that this allows for a considerable degree of discrimination against disabled people (especially those with mental health issues) where such questions, and their answers, have no bearing upon an individual’s ability to do a particular job. It is asserted that this can force affected applicants to conceal medical conditions and does great damage to the confidence of prospective job applicants affected by disability or mental health issues.
The Government appears to have taken such views into account and, in the course of the Bill’s committee stage in the House of Lords, they introduced an amendment that would make it discriminatory for an employer to rely on the answers to pre-employment health or disability-related questions unless certain exceptions applied. These exceptions include establishing whether the applicant will be able “to carry out a function that is intrinsic to the work concerned.”
While the proposed amendment would not stop contentious questions from being asked in the first place, it sets strict limits to answers being relied upon when applicants are being considered for employment. Furthermore, if an employer is challenged under this law, the burden of proof is reversed. The employer will have to prove that their decision not to employ was not based upon the answers given to these questions.
Another major development is that the Equality and Human Rights Commission (EHRC) will be empowered to investigate the use of questions prohibited under this amendment and to take enforcement action in its own name even where no discrimination can be shown to have taken place. The EHRC will be in a position to police the way in which recruitment takes place, allowing for this principle to be enforced in a systemic way without the need for individual litigation.
Those firms found guilty of discrimination, in addition to awards to any victim of such discrimination, will be required to draw up an action plan, overseen by the EHRC. Failure to comply could result in a £5,000 fine.
If the Bill is enacted with the amendment in its current form, there are potentially major repercussions for employers. However, these will tend to vary depending upon current recruitment policy. While the amendment appears to shackle employers, restricting their freedom to fully assess potential employees, the intention seems more to codify what should arguably already be good recruitment practice - to concentrate only upon those issues that are of direct relevance to an applicant’s ability to do the job in question. In this context, the amendment allows necessary questions to be asked. For instance, in the course of the Lords debate, Peers suggested the example of a prospective political adviser being asked about their ability to cope under pressure (though not directly about whether they had suffered from depression) or of a potential pilot being required to show a minimum number of flight hours to demonstrate their physical capacity to do the job (though not being asked directly about their sight or hearing).
It will be for individual recruiters to identify those functions “intrinsic to the work concerned.” However, until the new law has had time to settle in and had chance to develop through interpretation at tribunal level, this may remain an area of some doubt and unpredictability.
The implementation of the Government’s employer pension reforms moved a step closer in January, with eleven sets of regulations relating to auto-enrolment and other employer duties contained in the Pensions Act 2008 being laid before Parliament. Key changes to the initial draft included amendments to the staging process that will bring employers within the scope of the reforms month by month, according to their size.
From 1 October 2012 auto-enrolment will mean employees being automatically enrolled into their employer's qualifying pension scheme without any active decision on their part. At present, many employees fail to take up valuable pension benefits because they do not make an application to join their employer's scheme. Auto-enrolment is meant to overcome this. In advance of that date, the Department for Work and Pensions (DWP) is putting in place the legislative machinery governing the reforms.
Although auto-enrolment comes in from October 2012, employers' own duties will be phased in over the subsequent four years. The phasing in will be based on the size of the employer, typically measured by PAYE size. All eligible employees will have to be auto-enrolled into a qualifying pension scheme. Employers will choose the qualifying scheme they use, which could include the proposed new National Employment Savings Trust (NEST). Each qualifying scheme must meet minimum standards in respect of the benefits it provides or the amount of contributions paid into it.
Employees will be able to opt-out of their employer's scheme if they choose not to participate. Employees who give notice during the formal opt-out period will be put back in the position they would have been in if they had not become members in the first place. This may include a refund of any contributions taken following automatic enrolment.
