Is the new occupational health service suitable for small businesses?
The government’s Fit for Work occupational health scheme is due to complete its national rollout by the end of this year. The scheme sounds simple enough. Both GPs and employers can refer employees to the service, which will then conduct a telephone assessment of the patient. Following that, a plan will be produced outlining steps the employer could take to assist the employee’s return to work.
Small and medium employers (SMEs) could potentially benefit most from this scheme as larger employers are more likely to have their own occupational health schemes and are less likely to need it. However the scheme’s mechanics appear not to have taken into account the needs of smaller employers. Its apparent simplicity hides an inflexibility that could substantially reduce its effectiveness for these employers and inevitably it brings with it further administrative burdens that SMEs will find harder to bear than larger businesses.
Referrals
For example, although a GP can refer an employee to Fit for Work immediately, an employer has to wait for four weeks of employee absence before doing so. Although large businesses may be able to carry such absences for a month, smaller enterprises will find this harder. They need the plan as soon as possible. A four week wait is not logical for a system that purports to increase overall participation in the workplace. It would be helpful if employers could make a referral far earlier, say, after a week of absence.
Carrying out initial assessments by telephone interview also raises concerns for smaller businesses. It is difficult to see how a telephone caseworker will be able to investigate the varying needs of employees and employers when creating return to work plans. A ‘one size fits all’ approach will surely favour bigger employers that can adapt more easily. For example, where employees claim they are disabled for the purposes of the Equality Act 2010, they are likely to look to a return to work plan as evidence for an employment tribunal of reasonable adjustments that an employer should have made. A telephone assessment is unlikely to consider the greater impact on SMEs of part-time working or a phased return to work, which could ultimately lead to greater liability for small businesses.
Voluntary
Using the Fit for Work scheme is voluntary for both employer and employee. The scheme seems spectacularly unsuited to smaller business for cases of persistent absenteeism. The initial telephone interview is the first hurdle. An employer cannot make an employee actually pick up the phone, or ensure that a recalcitrant employee sticks to a return to work plan once one has been implemented.
The scheme provides no legal protection for employers that use it to begin capability proceedings against employees that fail to comply with its recommendations. Once again, large organisations can absorb the financial risk involved in terminating employees in these circumstances better, but unfair dismissal and discrimination claims loom larger over small employers, who are likely to feel they can’t afford to take the chance. The new scheme gives no extra protection from employment tribunal claims for employers that want to follow its guidance.
GP choice
A study conducted by the Department for Work and Pensions last October 2014 suggested GPs were likely to refer “just over a third (36 per cent) of nominally eligible patients” to the service. For such a major initiative, one which cost £170 million to implement, this is a very small percentage. So while larger employers are likely to be able to use their private schemes, smaller employers will either have to wait for four weeks, or rely on a GP that is, based on the government’s own statistics, likely to decline to even make a referral.
It would have been helpful for the government to have evaluated its pilots of the scheme before rolling it out. In the meantime, for the sector that could benefit most from such a scheme, it is a matter of hope over expectation.
Martin Pratt is a partner at law firm Gordon Dadds
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