The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

PC dismissed after being spotted on TV at Royal Ascot when off sick

PC Jonathan Adams is, like me, a fan of horse racing. However, his enthusiasm for the sport caught up with him when he faked illness to watch horses in which he had an interest.

PC Adams was praised for his community policing work in Gloucester city centre and was described by a retired chief inspector as being “one of the most honest police officers I have ever come across”.

On 30 September 2015 he was off work, having called in to say that he was suffering from diarrhoea. However, this coincided with the running of Little Lady Katie at Nottingham, a then three year old filly trained by Karl Burke in which he had a 2.5% share. The horse was third of eleven at odds of 16/1. In the subsequent investigation his attendance at the racecourse was revealed by a number plate check.

He was at Nottingham races again on 6 April 2016, this time watching the same horse come seventh of twelve at odds of 8/1 and having called in sick with a migraine.

He subsequently requested the week off for Royal Ascot and was refused. Undeterred, he told Gloucestershire Constabulary that he had to take 17 June off because he was suffering from irritable bowel syndrome. Somewhat unwisely, particularly bearing in mind his occupation, he was spotted later that day on Channel 4 Racing, leaping about with joy (pictured: credit Channel 4 Television), when another Karl Burke horse in the same syndicate ownership (but in which he didn’t have a stake), Quiet Reflection, won the Group 1 Commonwealth Cup, having gone off at at odds of 7/4 favourite and beating, among others, the Aidan O’Brien trained Washington DC.

At a disciplinary hearing held over two days in July 2017 PC Adams said that he had decided that it would do him more good to go to the races than stay at home because racecourses were his “happy place” where he could alleviate his symptoms of crippling stomach ache and stabbing pains or migraines. In that case he must have acted quickly, notwithstanding his ailment, when arranging to attend the Royal Enclosure at Ascot suitably attired and bearing in mind that he lives in Ross-on-Wye.

Sickness absence at an all time low

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that absence was the lowest recorded since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker.

The most common reasons for absence were coughs and colds (accounting for 34 million days / 24.8%), followed by musculoskeletal problems including back pain, neck and upper limb problems (30.8 million days / 22.4%). After “other conditions” the next distinct category was mental health issues, including stress, depression and anxiety, which accounted for 15.8 million days / 11.5%.

The statistics reveal that there has been a steady reduction in the overall number of sickness absences over a number of years.

The demographic breakdown highlights higher rates of sickness absence for women (2.5%  versus 1.6% for men). Older workers (2.9% for over 65s) are, unsurprisingly, more likely to be absent than younger ones (1.5% for ages 16 to 34). In  this context it is notable that the employment rate of those aged over 65 has more than doubled since 1993 and at October to December 2016 stood at 10.4% of the workforce (1.2 million people). While this trend indicates a need for employers to deal with more sickness absences, assuming that this trend continues in coming years, it is perhaps surprisingly counteracted by a reduction in the rate for 50 to 64 year olds from 4.4% to 2.7%.

The statistics revealed a 2.5% absence rate for smokers by comparison with 2.3% for ex-smokers and 1.6% for those who have never smoked.

The regional breakdown reveals that the highest sickness absence rates are in Wales and Scotland, followed by North East and North West England, while the lowest rates are in London and the South East. The research explains that this is because of the younger age profile, combined with a concentration of high-skilled jobs (which tend to have lower absence rates).

What are the likely implications of Brexit on UK Employment Law/HR practices?

Employers may not be aware that much of the current legislation in place to protect employee rights actually derives from the European Union – for example, working time regulations, rights of the employees on a business transfer (TUPE) and family leave rights to name but a few. Indeed some Politicians for the ‘Leave Campaign’ will no doubt have argued that such laws were inhibitive to British businesses and produced too many rules and regulations having a negative effect on both time and profits.

What is likely to happen?

In reality it is doubtful that the UK Government would look to repeal any employment law which implements minimum EU requirements, the reason being that many of these laws simply complement existing UK law (equal pay rights for example). In addition, much of our existing employment law simply reflects good/acceptable practice in business (or indeed life generally!) such as the right not to be discriminated against on the grounds of sex, age, disability etc. Furthermore some UK Laws actually go above and beyond the minimum requirements of EU legislation – in respect of holidays for example, the EU Working Time Directive 2003/88/EC only requires EU Member States to provide for a minimum of 20 days’ annual leave for employees, whilst the UK statutory minimum leave entitlement is actually 28 days inclusive of normal bank and public holidays.

As a final point it is worth noting that despite a (potential) Brexit, the UK will still need to maintain strong trading relations with Europe. If the UK is a member of the EEA (European Economic Area) it would be required to remain subject to many aspects of EU employment law.

In light of the above, whilst in my view the majority of employment law legislation will not be repealed or significantly changed, the UK Government may look to alter some employment law that UK businesses have struggled with. The following are areas that may be most susceptible to change:

Balancing sickness absence and disability issues

Ever since the enactment of the Disability Discrimination Act 1995, now subsumed within the Equality Act 2010, there has been an uncomfortable overlap between dealing with ill-health incapacity as a potentially fair reason for dismissal and dealing with protection from disability discrimination. For example, the same facts might justify a fair termination of employment in the context of the usual grounds for dismissal but could also establish a valid claim for disability discrimination, which would constitute an automatically unfair dismissal.

The issue was most recently visited by the Court of Appeal in the case of Griffiths v DWP which is of particular significance for employers who want to take steps to minimise risks in this regard. Ms Griffiths was employed by the DWP from September 1976. In 2009 she began suffering from post viral fatigue and fibromyalgia. This meant that she was disabled within the meaning of the legislation. In 2011, following an absence of 66 days, she was issued with a formal written improvement warning. As a result she raised a grievance, contending that the employer should have made adjustments, first by discounting the circumstances leading to the warning because they were connected with her disability and, second, that the relevant policy should be modified so that she could have longer periods of sickness absence before facing sanctions than would be permitted for non-disabled employees. Both her grievance and the appeal were rejected.

As a result she presented a complaint of disability discrimination to an employment tribunal. Her claim was dismissed on the basis that no duty to make either adjustment had arisen and in any event it was not reasonable for the employer to be expected to make either of them. An appeal to Mr Recorder Luba QC in the Employment Appeal Tribunal was similarly unsuccessful.

The questions on appeal to the Court of Appeal were:

Was the majority of the Employment Tribunal right to conclude that there was no substantial disadvantage so as to engage the duty to make reasonable adjustments?
Was the EAT right to conclude that the proposed amendments were not steps within the meaning of the Equality Act?
If there was a duty and the proposed adjustments did constitute potential steps which might be taken did the Employment Tribunal misunderstand the claim in terms of reasonable adjustments?
If the Employment Tribunal did understand the claim was it entitled to find that it was not reasonable to expect the employer to make either of the proposed adjustments?

Having considered the relevant authorities at length Lord Justice Elias concluded that both the majority in the Employment Tribunal and the EAT were wrong to hold that there was not a substantial disadvantage sufficient to engage the duty to make reasonable adjustments. As he observed:
In my judgment, the appropriate formulation of the relevant [provision, criterion or practice] in a case of this kind was in essence how the ET framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.

How hard do we work?

I imagine that, if asked, many people in employment would say that they work very hard. Controversially, at the recent Conservative Party Conference, Health Secretary Jeremy Hunt, suggested benefits cuts would make people “work hard” by strengthening the nation’s work ethic. He said:
My wife is Chinese, and if we want this to be one of the most successful countries in the world in 20, 30, 40 years’ time there’s a pretty difficult question that we have to answer which is essentially: are we going to be a country that is prepared to work hard in the way that Asian economies are prepared to work hard, in the way that Americans are prepared to work hard?
Of course, we now know that those who worked at getting the tax credit changes through Parliament should perhaps have worked harder or rather more wisely by including the relevant provisions in primary finance legislation rather than secondary legislation that was liable to be and was duly struck down this week in the House of Lords.

However, Mr Hunt has latched on the perception that UK workers do not work as hard as those in other countries. Of course such generalisations cover a multitude of scenarios but, as a general benchmark based on hours worked per annum the top five countries are:

South Korea
Czech Republic

However, evidence has emerged which suggests that UK workers are working very hard, perhaps too hard to the extent that this may be a cause of concern for both employers and employees.

First, according to research by Canada Life Group Insurance, 22% of UK employees did not take their full holiday entitlement in 2014 with 5% saying that they were pressured by their employer into not doing so. Reasons for not taking a full entitlement included providing cover for maternity leave and covering for members of staff who had left.

Second, and more concerning, research by National Accident Helpline has revealed 89% of workers have not taken sick leave when unwell.

Is a person on long term sick leave assigned in the event of a TUPE transfer?

Since the TUPE regulations were revised in 2006 there has been an obligation for transferors to disclose details of the workforce to transferees. This normally takes the form of a schedule detailing the employees, their job titles and main duties and any specific contractual rights. Disclosure also extends to detailing those on sick leave and any outstanding grievances or disciplinary matters. Employers also need to be careful to adhere to data protection requirements, as emphasised by the Information Commissioner. This is normally achieved by anonymising the information.

The general view is that the disclosure requirement extends to the entire workforce (in the event of a full transfer), or at least that part of the workforce that is subject to the proposed transfer. The technical definition set out in TUPE is “an organised grouping of employees. If this grouping has as its principal purpose the carrying out of services for a particular client, this is often referred to as a service provision change. But what of employees on long term sick leave? Do they form part of the workforce?

In BT Managed Services Limited v Edwards and Ericsson Limited Mr Edwards was employed by BT Managed Services (BTMS) as a field operations engineer. His employment commenced in 1994 with Orange and he was TUPE transferred to BTMS in July 2009. He worked on a domestic network outsource (DNO) contract providing operational maintenance for Orange and EE mobile phone networks. It was accepted that the team was an organised grouping of employees situated in Great Britain which had as its principal purpose the carrying-out of activities (the DNO contract) on behalf of a client (Orange) and therefore fell within the scope of Regulation 3 of TUPE.

In May 2006 Mr Edwards commenced long term sick leave as the result of a variety of ailments including a cardiac condition which meant that he could not undertake the strenuous work required of members of the team. There were unsuccessful attempts to provide him with less strenuous work and he was regarded as permanently incapacitated from the commencement of his sick leave. He last worked in January 2008 but remained an employee so that he could enjoy the benefits available under the employer’s permanent health (PHI) scheme. Once benefits under the insurance scheme expired BTMS continued to pay him (as an expense of the DNO team).

In December 2012 the DNO contract transferred to Ericsson following a tender exercise and the service provision change took place in June 2013. At the time of the change it was accepted that there was no prospect of Mr Edwards ever returning to work. It was held in the Employment Tribunal that he was not assigned to the grouping transferred pursuant to Regulation 4 of TUPE “because he did not contribute to the economic activity of the grouping”. It is worth noting that Regulation 4 does not include any express requirement that an employee must contribute to the economic activity of the grouping so the decision was based on the Tribunal’s interpretation of the Regulation.

Employment Judge Davies found that Mr Edwards had ceased to be a part of the grouping in 2010.
…it was essentially by default that such contact as there was with him and such steps as required to be taken in relation to him, were done by the same managers; that he continued to have the [operational unit code] for the DNO contract; and that costs associated with his employment were attributed to that contract. However, in view of the other factual circumstances, that did not mean that he was as a matter of fact still assigned to the organised grouping of resources and/or employees.

What seems to me central is the decision made in 2010. as the findings of fact…make clear, an essentially pragmatic decision was taken by Mr Hunt and Mr Gilmour to keep the Claimant permanently absent to continue to receive PHI payments.

…he was not assigned to the grouping. It was not contemplated that he would thereafter provide any work or carry out any of the activities under the DNO contract. What was contemplated was simply that he would remain on the books to continue to receive his PHI payments at no cost to BTMSL.
In the Employment Appeal Tribunal BTMS said that the Tribunal should not have treated the question of where Mr Edwards would have been required to work as one of the criteria to be taken into account in determining whether he was assigned to the grouping. Mr Edwards would have been required to work in the DNO team if he was able to do so so he was assigned and the question of whether he was able to do so was irrelevant.

Carrying over holiday pay when sick

Extended absence from work on sick leave can create odd situations, such as the accumulation of holiday entitlement. Most employers know that employees on maternity leave continue to accrue holiday entitlement and this is often added at the end of the maternity leave period.

In this month’s Employment Appeal Tribunal decision in the case of Plumb v Duncan Print Group the question was whether Mr Plumb, who had been off work for nearly four years, could claim all his accumulated holiday entitlement.

Mr Plumb was employed as a printer. He had an accident on 26 April 2010. He remained on sick leave until his employment was terminated on 10 February 2014. According to the terms of his employment his leave years ran from 1 February to 31 January. He was refused a request for holiday leave from 5 August 2013. When his employment was terminated he claimed holiday pay for 2010, 2011 and 2012. His request was refused in the basis that he could not demonstrate that he was unable, by reason of his medical condition, to take annual leave within the leave years.

Regular readers are aware that European law has dictated that holiday pay can accrue during sickness absence but there should be a cut off point. I wrote about this in the blog in 2011.

The employment tribunal took the view that Mr Plumb could not demonstrate that he was unable, by reason of his medical condition, to take annual leave while he was on sick leave and therefore dismissed his claim. That was not the basis on which the European decisions had excluded claims because they were based on the need for a cut off point.

The tribunal’s approach was wrong:

“Fit notes” have not reduced sickness absence

In 2010 I reported the introduction of fit notes as a way of focusing on making arrangements for employees to return to work rather than just being signed off without more. In 2014 the system was backed up with the launch of a Health and Work Service. However its scope has been restricted and there have been delays in implementation. Although scheduled to commence nationwide in April 2015 the scheme is currently being rolled out and appears to be limited to a telephone advice service. It requires the consent of employees/patients to participate.

In the meantime the EEF has published its Sickness Absence Survey 2015. Its conclusion is clear: “Five years on [from its introduction] – the government’s fit note isn’t working”. The comprehensive survey, conducted with 345 employers and covering 83,654 employees, is the twelfth national survey of its kind and SMEs accounted for 82% of respondents. According to the research, as at September 2014, only 5000 GPs from a pool of 40,584 had received training in health and work.

The survey revealed that 43% of employers said that the fit note had not helped employees to return to work, up from 35% shortly after the scheme was introduced in 2010. Employers also reported that the quality of GP advice on fitness for work has deteriorated.

It was noted that GPs and medical professionals are still issuing low numbers of “may be fit for work” fit notes and over a quarter of the businesses responding had not received any.

In terms of overall absence trends there is a sickness absence rate of 2.2% which equates to 5.1 sickness absence days per employee per year. However, as in previous years, over half of employees had no absence because of sickness. There was a notable increase in long-term sickness absence with the main cause being back problems and other musculo-skeletal disorders. However, for businesses with more than 500 employees the most common cause is stress and other mental ill health disorders.

is rewarding good attendance discriminatory?

In Land Registry -v- Houghton and others the question for the Employment Appeal Tribunal was whether a scheme designed to reward good attendance was discriminatory in respect of disabled employees.

The Land Registry operated a discretionary bonus scheme which commenced in 2012. All eligible employees were entitled to £900. However, any employee who received a formal warning in respect of sickness absence during the relevant financial year was not entitled to receive the payment.

Ms Houghton and four colleagues were all disabled pursuant to the criteria set out in the Equality Act 2010. They all had sickness absences but these were attributable to their disabilities. There was no doubt that the Land Registry had made reasonable adjustments to accommodate the employees’ disabilities. Nonetheless they were all issued with formal warnings relating to sickness. Accordingly they were all ineligible for the bonus payments. There was no discretion. Managers could determine that conduct matters would not affect entitlement to the bonus; not so for sickness absence which automatically triggered rejection.

At the employment tribunal the suggestion by the Land Registry that the link between disability and and non-payment of the bonus was too remote was rejected. On the contrary “non-payment of bonus was the consequence, result, effect or outcome of each Claimant’s disability”.

Justification is a possible defence to a claim of discrimination. There was a legitimate aim: encouraging and rewarding good performance and attendance. However the scheme was not a proportionate means of achieving the aim. The Claimants were awarded compensation for injury to feelings and the equivalent of pro-rated bonus payments.