Mark Alaszewski provides an overview of the government’s Health and Work Service which was introduced to help employers better manage sickness absence
The Health and Work Service (HWS), a new government funded occupational health scheme, was introduced by the Department of Work and Pensions on a phased basis in January 2015.
Its stated aim is to reduce sickness levels within the workplace by providing early interventions to assist employers in managing sickness absence. The scheme is particularly aimed at smaller employers who historically have had little engagement with occupational health services.
The contract to run the service has been awarded to the private sector provider MAXIMUS in England and Wales and is aiming for full geographic coverage before the end of 2015.
Referrals and assessments
Referrals to HWS are made by GPs and are triggered when employees have been absent on sick leave for a period of four weeks. GPs have little discretion about whether to refer to the service as a referral is the default option and reasons for non-referral are limited and defined.
Once a referral has been made to the service, a first assessment takes place within two working days. Assessments are conducted by telephone or over the internet by HWS advisers. The scheme’s advisers are healthcare professionals who have occupational health qualifications, experience or are “able to demonstrate experience and skills appropriate to working in an occupational health context”.
Return to work plan
The adviser will then produce a personalised return to work plan, which will be provided to the employer and employee within two working days of the assessment. The plan will identify the barriers preventing the employee from returning to the workplace, provide advice on how these may be overcome and a realistic timetable within which a successful return to work could be achieved. A case manager will then be responsible for implementing the plan.
Employees do not have to participate in HWS although participation will be treated as evidence of entitlement to statutory sick pay (SSP) and fitness for work, replacing the current system of GP “fit notes”.
In this respect the DWP wields a significant “stick” in forcing employees to participate in HWS and comply with the scheme’s return to work plans, not least because, if they opt out of the scheme or do not comply with the return to work plan, they risk losing their entitlement to SSP.
Good or bad for employees?
While HWS is still bedding down, it is difficult to assess whether the scheme is likely to be beneficial for employees and the extent to which it will affect employment litigation. In principle a fully comprehensive occupational health service promoting the general principle of early intervention to resolve work-related health issues is not necessarily a bad thing for employees.
There are also potential benefits for employees in terms of taking the occupational health function out of the hands of employers. In theory, referrals are less likely to be manipulated by management to try and engineer outcomes which assist the employer, most obviously in providing evidence in support of dismissals for capability/ill health.
However the objectives and scope of HWS raise a number of danger signals in terms of the objectivity of the scheme and employee representatives should treat HWS reports with considerable caution if employers seek to use them as evidence in workplace disputes.
It is worth noting that HWS is extremely low cost with the DWP allocating a maximum of around £100 for each assessment. On this kind of budget and with very limited contact time between advisers and employees (and with no face to face contact) it is difficult to see how the scheme can produce anything other than an extremely basic assessment that may have limited application in more complex workplace disputes, such as those involving long-term ill health and disability.
The purported aim of HWS in reducing absenteeism in the workplace may also be problematic if it promotes overly optimistic return-to-work plans that underestimate both the extent of the employee’s condition and the obstacles to a successful return to work. This will be further exaggerated if the scheme has an implicit aim in reducing government spending on work-related welfare payments. Although there is nothing in the literature around HWS to suggest this is the case, given the status of the scheme as the gateway to statutory sick pay, it would be naïve to discount this as a possibility.
These issues give rise to a potential risk that HWS will operate in a manner similar to the controversial medical assessments by the private sector provider ATOS healthcare, which have been used to establish eligibility for disability welfare benefits and are widely perceived to be skewed against claimants.
When applied to workplace assessments, the likely outcome will be that employees will be pressured into returning to work before they are properly fit and able to do so and will become vulnerable to capability procedures if they do not comply with the targets set out in reports, which may have been compiled in haste and with partial and inaccurate information.
Even if this is not the case, there may be tension between HWS assessments and the assessments of GPs and other occupational health providers. This could mean that a service intended to resolve and simplify the often difficult and disputed territory around long-term sickness absence may actually do the reverse and add a further layer of complexity.
Conclusion
The best advice for employee representatives is to be extremely sceptical of HWS reports, at least until the credibility of the service is established, and to encourage employees to challenge unfavourable reports with their own independent medical evidence.
The generally unfavourable legal tests applicable to ill health dismissals require employees to do this at the earliest possible stage because if unfavourable reports are not challenged during the capability process it will be extremely difficult to overturn dismissals at tribunal.