Government consultation on legislative changes to "reduce ill health related job loss"

Catherine Casserley

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.

Background

The purpose of the proposals is to address the considerablenumber of people who are at risk of falling out of work through an absence thatis unaddressed. Evidence shows that early intervention by an employer foremployees at risk of, or on, long-term sickness absence is important inreducing ill health related job loss.  Asthe document states, however, there is little in the UK system to encourageemployers to take action early in the sickness absence period, or when someoneis at risk of going on sickness absence.

But there is also a confusion running through theconsultation. At various points, it interchanges the terms those with “longterm health conditions”, “disabled people” and “employees with healthconditions”.  As those practising inemployment law will be aware, the definition of disability in the Equality Act2010 is one that is relatively easily met,  given the comparatively low threshold for“substantial” disadvantage, the disregarding of treatment for the purposes ofadverse effect and the coverage of fluctuating and recurring conditions.. Thus,in reality, many of the employees that the consultation seeks to address willalready be covered by the rights and obligations contained in the Equality Act2010.  This is important because thepurpose of the consultation appears to introduce a new regime for people whoare unwell but not disabled and accordingly covered by the positive obligationscontained in the Equality Act 2010.

The proposals

 The governmentproposes that it will do the following:

• Introduce a right to request work(place)modifications for employees not covered under the duty to make reasonableadjustments under the Equality Act 2010

• Strengthen statutory guidance for employers toencourage early intervention to support a sick employee to return to work

• And reform statutory sick pay to allow for greaterflexibility in returning to work following sickness absence

Right to request Workplacemodifications

Insofar as eligibility for this new right is concerned, theconsultation provides examples of those who may not be covered by thedefinition of disability – such as those with temporary or fluctuatingconditions that have not had a substantial and long term negative effect onnormal daily activities - stating that they are less likely to receivemodifications. The evidence on which this is based is self-reporting by thoseon ESA. There is no analysis, however, of whether in fact these people wouldhave been entitled to such adjustments because they were disabled but were notgiven them simply because neither they nor their employer knew that they wereso entitled.

The proposal made is that eligibility for this right couldbe restricted to those who have experienced a long term sickness absence offour or more weeks; or those with a cumulative total or four or more weeks ofabsence; those returning to work from a period of sickness absence of anylength or any employee who can make the case for a modification on healthgrounds.

Examples of the types of modifications that might be made arehaving a conversation about the employee’s needs; keeping a written record ofconversations; seeking expert advice from occupational health; andmodifications to working hours, tasks or to the physical environment.

Unlike the duty to make adjustments, but like the requestfor flexible working, this right could be refused on legitimate businessgrounds.   The employer and employeewould agree between them where it is reasonable what the modifications shouldbe; a code of practice could support it and the code would set out in moredetail the business reasons that could be appropriate for refusal and in whattimeframe an employer would be required to respond.

Enforcement would be via the tribunals.

Statutory Guidance

The second proposal is to strengthen statutory guidance toencourage employers to take early, sustained and proportionate steps to supporta sick employee to return to work, before that employee can be fairly dismissedon grounds of ill health affecting their capability – thus a change to unfairdismissal legislation. The core test of whether an employer had actedreasonably would be maintained “to account for the specific and varied circumstancesof each employer”.

Statutory sick pay

The government is proposing a reform of SSP so that an employeewould be able to receive part wage and part SSP instead of the binary approachat present, to encourage a phased return to work. There is also a proposal toextend SSP to those earning below the Lower Earnings limit.

There are also proposals regarding occupational healthprovision, and its approval as well as advice and support for employers.

Conclusion

Proposals which support people back into work and help tomaintain them in work is something that is always to be welcomed. But as thosepractising in the employment tribunals will know, awareness of the rights andobligations under the Equality Act 2010 in relation to reasonable adjustmentsremains patchy  It would have beenhelpful to see something which addressed this, as well as new provisions whichhave the potential to, unless very carefully handled, undermine (and evenconfuse) the very substantial rights already in place. The consultation runsuntil 7 October 2019.