The Government’s “Fitness for Work” assessments have been praised and vilified in equal measure since they were rolled out nationwide in April. The employment and support allowance (ESA) tests are part of the Government’s £5 billion “Welfare to Work” initiative to get people off benefits and into jobs.
A report by the Work and Pensions Committee, published in July, found that the initial Work Capability Assessments, introduced in 2008, were “flawed” and that the revised system fell below the standard that claimants expected. The committee did accept, however, that improvements had been made and said that the Government’s aim of helping benefits claimants back to work was “laudable”.
The ESA assessments have certainly challenged the current benefits system. A recent study into the results of the new tests by the Department for Work and Pensions (DWP) found that only 7% of current sickness benefits claimants were incapable of working. The study claimed that 39% of the 1.3 million people claiming sickness benefits were fit for work and 17% were able to do some form of work. The remaining 36% had dropped out of the assessment process and 1% of applications were still in progress.
The tests include a detailed health questionnaire that asks a number of questions such as: “Are you having or awaiting hospital treatment?” and “Can you manage to plan, start and finish daily tasks?”.
But does this potentially flawed process, which is driven by the clear objective of getting people off benefits and into work, run the risk of forcing ill and incapable people into jobs they are unable to do? And what sort of effect will this have on employers? Are the assessments ultimately fit for purpose?
Validity of the fitness test
Sandra Dalchow, senior consultant at Lorica Employee Benefits consultancy, says that the validity of the fitness test depends almost entirely on the job the employee is planning to do. “The capability assessments are a standard set of tests, so whether or not they give an adequate evaluation really depends on what job role someone is being considered for,” she comments. “What would be of far more value to an employer is a pre-placement health assessment, requested when a conditional job offer is made, which can be tailored to take into consideration the job role requirements, as defined by the employer.”
The health assessments should incorporate a paper-based or online assessment, follow-up telephone call from a medical professional and finally, a face-to-face medical assessment with an occupational health doctor, Dalchow advises.
Thomas Humphris, UK HR director at global publisher Informa, also believes that the test should not be used as a standalone measure to determine whether or not someone is capable of doing a job. “The assessments are dependent on the condition the employee has suffered from. As an HR function we would apply our own triage process, based on common sense, to decide if we would require a further occupational health assessment,” he notes. “We would need to make reasonable adjustments where required to support an employee and, likewise, we require the employee to support us by telling us what their requirements are to aid a supportive working relationship.”
Dalchow believes that, if employers have any concerns about potential health issues, they should not make any recruitment decisions without first taking advice from an expert. “If HR managers are being asked to make decisions about recruitment without some sort of appropriate clinical support then this could place them in a very difficult position, both in terms of the short-term decision and the longer-term implications if there is an underlying health problem which the employer is unaware of,” she says.
But what happens if an employee’s health worsens once they are in a role and they are forced to take lengthy absences from work? “This point needs serious consideration but, again, I think it’s a good reason to obtain a pre-placement assessment for that specific individual by someone who has knowledge of the requirements of the job,” says Dalchow. “The employer is then informed about issues which may be relevant to the role and is then in a better position to proactively support the employee in the workplace.”
Humphris believes that early prevention, open dialogue and clear absence management policies are vital. “It’s fair to say that a very high majority of employees don’t take time off work by choice and, as a supportive employer, we have a duty of care to see what we can do to aid any form of rehabilitation and return to work,” he says.
Avoiding employment tribunal claims
Absence management, however, is a notoriously tricky area to manage and employers can find themselves facing employment tribunal claims if they fail to get it right.
Emma Bartlett, a partner at law firm Speechly Bircham, says more serious health problems, such as depression, should be dealt with sensitively and that difficulties could arise when the employee is reluctant to share information with their employer. “The employer should try to meet these concerns by designating to someone within the organisation, usually from HR, who can deal with the enquiry on a confidential basis.”
There are also legal implications for the employer if the condition suffered by an employee is deemed a statutory disability under discrimination legislation. An employer will have an obligation to make reasonable adjustments to accommodate the disability. And, if an employee suffers a detriment in the workplace that is related to the disability or is dismissed because of it, the employer could be at risk of unlawful discrimination.
One further challenge is keeping a dialogue going with an employee on sick leave. “The situation quite often arises where an employer wants to discipline an employee who then immediately takes sick leave,” Bartlett explains. “The employer may need to press ahead with the disciplinary action and will need information from the employee about how long their ill health will last and when they can be expected back at work.” The employer should seek medical advice, either from the employee’s own GP or occupational health team, as to whether the employee is sufficiently well to partake in the investigation.
“If the employee refuses to participate in this process, only then will the employer be able to determine whether or not proceeding with the disciplinary in the employee’s absence is reasonable, and only after warning the employee that this is what they propose to do,” Bartlett notes.
So it looks as though the new assessments could present significant challenges for HR managers when it comes to tackling absence management. Employers will need to tread very carefully and get sound medical and legal advice to ensure they get it right.