What does the new Fit for Work service mean for employers?

Published on 19th Mar 2015

This year has seen the launch of the new Fit for Work service.  The service consists of two parts:

  • An advice service providing free, expert and impartial health advice for employers and employees. This service is available now via the website http://fitforwork.org/ or telephone (0800 032 6235).
  • A referral service for a qualifying employee to receive an occupational health assessment resulting in a Return to Work plan. This service is in the process of being rolled out across different regions. The referral service is not a comprehensive occupational health service or one capable of dealing with complex issues. Its focus is on getting employees in relatively straightforward cases back into work.

It is early days for the service and will be of particular benefit to those employers who do not currently use their own occupational health service.  The difficulty for employers who already use occupational health will be ensuring that their current provision works together with the Fit for Work service where a GP has referred an employee to the Fit for Work service and dealing with the possibility of conflicting recommendations.  However, the service should help provide momentum for GPs, employees and employers to actively consider how an employee who has been off sick can get back to work – the trigger point of 4 weeks providing a useful marker in this respect.

So what happens under the new referral service?

Step One: Referral

A GP may refer an employee to the referral service where the employee has been off sick for 4 weeks or more (or it is anticipated that he or she will be off sick for at least that amount of time) and there is a reasonable likelihood that the employee will return to work (albeit on a phased basis). The employee must not have been referred for a Fit for Work assessment within the preceding 12 months. Where a GP does not refer an employer it can make its own referral once the employee has been off sick for 4 weeks. The employee must consent to the referral and can withdraw their consent at anytime.

Step Two: Assessment

Within two working days of referral, an occupational health professional will contact the employee and carry out a telephone assessment. If needed a face to face assessment will take place within five working days although it is anticipated the need for this will be rare. During the assessment the employee will be asked about their condition, their job and any factors, including their health, work and home life which may present difficulties preventing their return to work.

Step 3: Return to Work Plan

The occupational health professional will seek to agree a Return to Work plan with the employee covering a specified period of time and potentially making recommendations for an employer to assist this return. If the employee consents, the employer can be asked to assist with the process. The guidance suggests this may be appropriate where the occupational health professional:

  • Needs a better understanding of the workplace context and any limitations;
  • Has identified the employee’s relationship with the employer as an obstacle to a return.

Where the employee consents, an agreed Return to Work plan will be shared with the employer and the employee’s GP. An employee can ask for specific parts of the Plan to be removed before it is shared. 

Step 4: Checking the Return to Work Plan is on course

The occupational health professional will contact the employee at an arranged point to check if their Return to Work plan is on course and also shortly after the proposed return to work date.

  • If the employee has not returned in the proposed timescale, a further assessment may be considered necessary.
  • Where recommendations in the plan have not been actioned the occupational health professional may contact the employer with the employee’s consent to ensure that any recommendations have been fully understood. This may include “taking a facilitation role between employer and employee”. The guidance states that “support will be provided through progressing the difficulty together with appropriate signposting to appropriate agencies e.g. mediation”.

Step 5: Discharge

Employees will be automatically discharged from the referral service:

  • two weeks after they have returned to work (including the beginning of a phased return); or
  • on the date the referral service decides that here is no further assistance it can offer the employee, which will be either when the employee has been with the service for three months or at the point that the referral service decides that the employee will be unable to return to work for 3 months or more.

The Government has published guidance for both employers and employees on the new service available here and here. This guidance will be updated as referrals begin to be accepted. The Government has also introduced a tax exemption of up to £500 (per tax year, per employee) on medical treatments recommended by the fit for work referral service or an employer’s own occupational health service to help employees return to work. The exemption will not need to be claimed from HMRC but will be applied by the employer at the time they provide the benefit.

What do employers need to do?

  • Understand the limitations of this system and consider how it will work with any existing occupational health provision: Remember this is a “return to work” service and given the timescales in which the referral service operates it is unlikely to be appropriate for dealing with complex cases. The service should be seen as an addition to rather than a replacement of any existing occupational health provision and where the employee consents Fit for Work will engage with your own occupational health provider in producing and facilitating the Return to Work plan. In any event, you should reserve the right to request that an employee attends your own occupational health provider given the benefit of your own provider carrying out a face to face assessment, having a greater understanding of your business and operating over less stringent timescales.
  • Update your sickness policy:
    • to make sure employees are aware of the fact that their GP or you may refer them to Fit for Work and that you, as their employer, will be contacted as part of this process.
    • to confirm that an employee will still need to provide you with Fit Notes as appropriate for any sickness absence but that if a Return to Work plan is issued this will be accepted in place of a fit note for statutory sick pay purposes.
    • that throughout the referral process your employee is still subject to your existing sickness absence policy and procedures and that you reserve the right to also refer the employee to your existing occupational health provider.
    • if the employee chooses not to engage with the Fit for Work process despite referral or to share a Return to Work plan with you, their absence will continue to be dealt with under your existing policies and procedures (but based on the information that has been made available to you).
  • Make use of the 4 week trigger point to take stock of an employee’s sickness absence: Build in an “alert” to your internal processes so that you know to consider a referral once 4 weeks absence has passed. If the employee’s GP has also made a referral, the two referrals will be combined.
  • Ensure line managers are informed and trained on managing requests for information or return to work plans made via the new service: Make sure line managers know who to contact should they receive a request for assistance from a Fit for Work occupational health provider or a Return to Work plan. The circumstances in which it is anticipated an employer, subject to employee consent, may be contacted by a Fit for Work occupational health provider include:
    • where it is necessary for them to gain a better understanding of the specific workplace context and any limitations in pulling together the Return to Work plan;
    • when recommendations in a Return to Work plan have not been actioned and may include taking a facilitation role between the employer and the employee;
    • where the employee’s relationship with the employer has been identified as one of the obstacles to a return to work.
  • Consider any recommendations and any proposed timetable for return made in a Return to Work plan carefully: Although not mandatory, employers are encouraged to act on any advice and/or recommendations contained in the plan and, where the employee consents, you may be contacted by the Fit for Work occupational health provider to check you understand the recommendation being made and, as necessary, to act as a facilitator between you and the employee. Remember a recommendation may be a reasonable adjustment for disability discrimination purposes and the Return to Work plan may well form part of the evidence in any litigation. Care will need to be taken where the recommendations in the Return to Work plan conflict with advice by your own occupation health provider, particularly where the employee favours the Return to Work plan over your provider’s recommendations. 
  • Consider whether you can make use of the Government’s new tax exemption for qualifying medical treatment: Where you do implement any recommendations for further medical treatment based on the recommendations contained in the Return to Work plan or from your own occupational health provider, consider whether these fall within the government’s tax exemption (see above).

The Fit for Work service is in its early days and employers should keep a watch for when the service is being rolled out in the locations where their business is located (a roll out map is available here) and more guidance as the service finds its feet. More information can be found at http://fitforwork.org/. Please contact your usual OC Contact for further advice on the new service and how this will impact on your sickness policies and procedures.

Interested in hearing more from Osborne Clarke?

* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

Connect with one of our experts

Interested in hearing more from Osborne Clarke?