Health is wealth: the government’s consultation on ill health proposals

A phrase that my grandfather would always utter with deep conviction as I was growing up was “never forget; health is wealth.” I think this simple saying could not be more pertinent, particularly in the modern workplace and the impact that our hectic lives can often have on our mental health and wellbeing. For many, the phrase quite literally rings true, as there any many individuals with disabilities and health conditions who struggle to find or keep work.  

The Equalities Act 2010 provides protection to individuals with disabilities in the workplace; however many people with disabilities remain out of work, and those who suffer from health conditions which fall short of qualifying as a disability are left in an uncertain position as they are not covered by the Equalities Act.

In light of this, the government has published a consultation paper called Health is everyone’s business: Proposals to reduce ill health-related job loss. This puts forward a number of proposals which aim to keep those with disabilities in work and to increase protection to those with other long-term health conditions. As part of this, the government has stated its commitment to “doing more to create the conditions for success by making sure all employers have access to the support they need to help their employees”.

Some of the key changes proposed are summarised below:

1. Workplace adjustments
   
   Disabled people already benefit from the right to receive workplace adjustments under the reasonable adjustments duty in the Equalities Act. However, some employees miss out on support because they do not meet the definition of disabled. The proposals seek to enable more people to gain access to these types of adjustments, by introducing a new right to request work/workplace modifications.
   
   Reasonable activities that could be expected of employers might include, having and recording conversations with employees about their needs, seeking advice from health services and making changes to work hours/patterns and the physical working environment.
   
   The government is consulting on who might be eligible for this right, but possibilities include any employee who has had four weeks of sickness in a 12-month period, any employee returning from any period of sick leave or, potentially even just any employee who can make a case for needing modifications on health grounds.
   
   Employers will retain the right to refuse workplace adjustments on legitimate business grounds. However, the proposed changes could still see a large increase in the number of employees making requests for workplace adjustments.
   
   
2. Statutory Sick Pay (SSP)
   
   There are also plans to increase the flexibility of the SSP system to allow for phased returns to work. Under current rules, SSP payments stop as soon as an employee makes any return to work, but under the new proposals SSP payments would continue on a prorated basis whilst the employee has not yet fully returned to work for health reasons, such that their earnings would be part wage and part SSP.
   
   Further proposed changes include making provisions for those who currently do not have a right to SSP because they are low earners (the minimum wage to qualify for SSP is £118 per week), by giving them an entitlement to sick pay at 80 per cent of their earnings.
   
   There are also plans to increase fines on employers who do not pay SSP and to remove the “qualifying days” aspect of the calculation of when SSP begins, with the aim of simplifying such calculations.
   
   
3. Occupational Health Reforms
   
   The government wants to increase the number of employers purchasing occupational health (OH) services. To do this, they aim to bring in reforms to increase access to good quality, cost-effective services and to ensure the OH market can respond to greater demand.
   
   It is also considering providing financial support, perhaps in the form of subsidies or vouchers, to small and medium sized businesses who would otherwise face financial barriers to purchasing OH services.

Conclusion

All in all, the proposed changes are motivated towards creating a more flexible and supportive workplace, although this inevitably brings with it a greater onus on employers to support their employees in times of ill health, both within and returning to the workplace, and during sick leave.

The government consultation on the above proposals remains open until 7 October 2019 and you can respond to the consultation here. In the meantime, employers may want to review their current policies and procedures and consider how they may be impacted by the potential new reforms.

If you require further information about anything covered in this blog, please contact Shehnal Amin, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2019