Employment Law Cases

An overhaul of statutory sick pay, encouraging early interventions from employers and a right to request workplace modifications are among the approaches the government wants to pursue to reduce ill health-related job loss.

The consultation paper, Health is Everyone’s Business, contains the following proposals:

Right to request workplace modifications

• For those not covered by the existing duty to make reasonable adjustments under the Equality Act, the government is considering a new right to request work(place) modifications on health grounds, refusable by the employer on legitimate business grounds (i.e. similar to the existing right to request flexible working).
• This might be restricted to those who have experienced a long-term sickness absence of 4+ weeks, either cumulatively or in a single occurrence.
• This new right would be supported by a code of practice. The right would be in addition to, but distinct from, the duty to make reasonable adjustments.
• Activities or modifications that could potentially be deemed reasonable for employers to undertake or provide to support employees to manage their health at work could include, but would not be limited to:
  • having a conversation about the employee’s need for a modification
  • keeping a written record of conversations between employer and employee
  • seeking expert advice from occupational health (OH) services to support decision making
  • modifications to working hours or patterns, working tasks or duties, or to the physical working environment
• Enforcement of this new right would ultimately be via the tribunal process.

Encouraging early/supportive action from employers

• The government believes there could be some benefit from strengthening statutory guidance to encourage employers to take early, sustained and proportionate steps to support a sick employee to return to work, before that employee can be fairly dismissed on the grounds of ill health affecting their capability. As a first step, the government will look at bringing together and formalising existing employer obligations and best practice.
• This guidance would be intended to provide more legal direction than currently exists, particularly on the principle of providing support early during a period of sickness absence, while at the same time respecting the existing and substantial body of case law which has developed over time. The core test of whether an employer had acted reasonably would be maintained to account for the specific and varied circumstances of each employer.

Reforming statutory sick pay (SSP)

• Amending the SSP rules to enable an employee returning from a period of sickness absence to have a flexible, phased return to work. Under such a change:
  • an employee would be able to receive part wage and part SSP instead of the current binary approach
  • the rules would allow such flexibility after 2 or more weeks of absence, as a phased return is less likely to be necessary following a shorter absence
  • it would be for an employer and employee to decide whether a phased return to work is appropriate after a period of sickness absence, and how to phase the return, they might consider medical advice for the employee, and how business needs can accommodate a phased return to work
• Simplifying the technical rules in the following ways:
  • every day of the week could be considered a qualifying day, rather than an employee’s contracted working days, or the qualifying days agreed with their employer (except those days where no employees are required to work)
  • waiting days could be calculated using the number of days a week that an employee normally works, rather than the specific days of the week that an employee works – where the number of days worked varies each week, an average could be taken for the last 8 weeks of work
• Extending protection to those earning less than the Lower Earnings Limit (LEL) (currently £118 per week) who do not currently qualify for SSP
• Increasing fines on employers who fail to pay SSP
• Possibly including enforcement of SSP within the remit of a proposed new, single labour market enforcement body
• Making access to a Day 1 written statement a right for both employees and workers – to include details of eligibility for sick leave and pay
• Looking at a rebate of SSP for SMEs​

Improving access to occupational health (OH)

Because encouraging employers to take early action to support employees will result in more employers wanting to buy OH services, the government is:

• seeking views on ways to reduce the cost for SMEs through potential co-funding of OH, e.g. via a direct subsidy or voucher scheme
• looking at working with partners to encourage an increase in the numbers of doctors and nurses working in OH
• looking at ways in which it can support innovation in the ways that employers buy OH services and in how services are delivered, including harnessing the potential of technology to support service provision
• looking at how quality standards and quality marks can be improved

Advice and support for employers

• Chapter 4 of the consultation paper outlines how the government proposes to improve the advice and support employers need.
• The government is exploring the possibility of employers automatically reporting sickness absence through their payroll system, so that it has the data to be able to provide timely and targeted guidance to employers on how to manage sickness absence.

The consultation closes on 7 October 2019 and there is, as yet, no timescale for further action. All we have is that the government ‘will use the evidence and views gathered during this consultation to develop these proposals further and understand the impact of the changes on both employers and employees. This feedback will also help to determine what approach offers the best value for money and is affordable in the context of the next Spending Review’.