August 2009

About Thompsons

Thompsons is the UK's most experienced trade union and personal injury (PI) law firm. It has a network of offices across the UK, including in the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time, the firm will be running over 70,000 claims for people injured at or away from work.

The firm participates regularly in government consultations on legislative issues.

The proposal

Thompsons supports in principle reform of the papers used by GPs to document their advice on fitness to work for patients with health conditions.

It is always better to find ways of helping people back to work after injury or illness than having them off sick. Indeed within any personal injury claim the injured or sick person has a duty to mitigate their loss.

The government’s proposal allows for employees, most of whom (certainly in our experience) will be keen to return to work, to discuss with their doctors the strategies which may enable them to continue or resume working while they recover. That is a positive move.

However, we are concerned that the department’s approach does not attempt to tackle the issue of long-term health and well being.

By adopting a voluntary approach and not binding employers to any of the recommendations made (pg 10, para 34), employees who are on sick leave because their employers have injured them risk being effectively forced back into work with no guarantee of changes and improvements being made to their work system and environment. That makes no sense either long or short term.

The majority of reasons why people are on long term sick leave are depression or back condition related.

Many people remain on sick leave not because their GPs continue to sign them off without encouraging them to try to return to work or advising employers what tasks the worker can perform, but because employers fail or refuse to make the necessary adjustments to enable them to work again. They find themselves in a no man’s land not wanting to stay off but unable to return.

This is especially so when someone is not formally disabled within the meaning of the Disability Discrimination Act.

Unless reform of the medical statement places obligations on employers to, for example, reduce the individual’s workload, adapt workstations and change systems of work (all of which could be temporary moves for review after a reasonable time period) then the cost of sick leave to industry will not be reduced and neither will compensation to employees made ill and injured by their employers.

The proposal appears to link “well notes” with access to Employment and Support allowance. This is fundamentally wrong. The government’s new work-health strategy must focus on the employer’s duty to help people back to work. As with rehabilitation, it cannot be used as a stick to beat the sick and injured with. Hard working families who have lost income through no fault of their own must not be further punished.

The DDA requires employers to make reasonable adjustments, but clearly they need encouragement to be more flexible in their attitude to helping absent workers who are not yet on the scrap heap or labelled disabled.

Consultation Question 1: Do you have any further information, data or analysis which would be useful for improving the quality of the analysis in the attached impact Assessment?

We are concerned that there does not appear to have been any studies into how “well notes” have been implemented in the working environment and if they benefited the employee, in terms of their health and wellbeing and productivity longer term.

Consultation Question 2: The Government welcomes views on whether listing common types of changes is helpful; whether those listed are sufficient; and on whether ‘Occupational Health assessment’ should be added to the revised statement.

In Thompsons’ experience with real clients, GPs are not the most qualified to answer questions on what the employee can or cannot do in a work place. GPs do not have specialist knowledge of the workplace and the role the employee performs in that job. Therefore for the employee to have the most adequate assessment and care, they should have a detailed assessment by an occupational health specialist or in cases were illness is due to stress/depression a psychologist.

Consultation Question 3: Will the changes described in paragraph 40 ensure that the current functions of the special statement - form Med 5 - are accurately incorporated in the revised form Med 3?

No comment

Consultation Question 4: The Government welcomes views on whether medical statements should only be issued when a patient is assessed as ‘not fit for work’ or ‘may be fit for some work’.

We are concerned that the proposal to remove the option for doctors to issue a medical statement when they believe a patient can return to work, on the basis that GPs are able to judge with “reasonable certainty” when that will be, assumes a level of knowledge about the workplace and the individual’s role that most doctors simply do not have.

There is a danger too that employees who feel under pressure from their employer, or because of their finances, to return to work will do so far sooner than is in the interests of their health and wellbeing if they no longer need a medical statement to do so.

It is one thing to encourage individuals to judge for themselves when they are ready to return to work. But it is quite another to remove the ability of employers to seek medical evidence of fitness to work before the employee can return - this simply provides them with the opportunity to take someone back before they are ready, and even to coerce them in to doing so. And then to dismiss them when they cannot cope.

This is neither in the employee or employer’s interest.

At the very least an employer should have an obligation to carry out a quick review with the GP and with the employee, possibly by telephone, to determine that the employee really is well enough to return to work and what adjustments might need to be made to their job and work environment in order to enable them to do so without setting back their recovery.

Consultation Question 5: The Government welcomes views on whether the draft regulations, including the rules, achieve the intentions expressed in the commentary. In particular, bearing in mind the Government’s aim of reducing sickness absence and supporting people with health conditions to return to work at the earliest opportunity, should the maximum duration of a medical statement be less than 6 months? (See Rule 13.)

We reiterate the points made in our introduction to this response. The government is putting forward these proposals without, or so it appears, basing it on a proper understanding of why people go on sick leave and a commitment to tackle those causes.

Measures that simply “encourage” people back to work do not deal with the underlying causes of work related stress and depression, the most common reasons for sick leave.

Considerably more research needs to be done. And unless it is made compulsory for employers to implement reasonable adjustments for employees returning to work after anything other than a short period of sick leave and always in the case of employees absent due to work related illness or injury, then the cost of sickness absence to industry will not be reduced.