Getting OH management referrals right is a key factor in supporting a return to work after sickness absence. Dr Sue Smith and Anne Harriss give some advice on good practice in the second of a two-part series on OH reports for managers.
Management referrals and case management are integral to the role of most occupational health nurses (OHNs). Employees may be referred to an OH service for an opinion of the effect of work on health or health on work.
In the pre-computer era, responses to management were completed by hand and prepared in triplicate with carbon copies. The form provided limited options with tick boxes and a space for comments.
The employee was assessed as:
- unfit but likely to return to work by [dd/mm/yy];
- permanently unfit and recommended for retirement on grounds of ill health; or
- unfit for this work but fit for redeployment to work not involving [enter restrictions]; and/or
Job done. Nice and easy, except that if the OHN had the temerity to enter a recommendation for modified working in the comments section, they could expect a call from an irate manager insisting that this was simply impossible, whatever the circumstances. Times have changed.
Flash forward 20 years and many OHNs complete their assessments and email the reports to management the same day. The Disability Discrimination Act 1995 (DDA), and the Equality Act 2010 have provided the legal framework and clout needed to help persuade management to follow through on OH recommendations.
Previously, OHNs had tried to do the right thing in supporting employees who were not fully fit or had a disability and so were unwittingly anticipating the intention of the DDA. In its early days, the DDA prompted a flurry of cases in employment tribunals, for cases of possible disability discrimination.
Nowadays, management and HR usually have a much better understanding of their obligations to employees with disability and of our role as OHNs. However, this is not always the case, and therein lies the challenge.
Checklists for use when advising on fitness to work
Functional ability: impairments of function to be considered:
- cognition: concentration, memory, learning and understanding; and
- awareness of physical danger.
What the occupational health clinician should advise on:
- functional ability;
- reasonable adjustment to enable safe working;
- trends for recovery;
- prognosis – likelihood and timescale for return to work; and
- relevant legal obligations.
Disability definition and the Equality Act 2010:
- conditions defined as disability by diagnosis, eg cancer and HIV;
- progressive and episodic conditions, such as multiple sclerosis;
- long-term conditions, likely to last 12 months or more;
- physical or mental impairment which may include undiagnosed mental health conditions; and
- substantial adverse effect, ie not trivial in relation to normal day-to-day activities.
Impact on ability to work:
- Is the employee currently fit for work?
- Is the condition caused by, or made worse by, work?
- Is there a disability as defined by the Equality Act 2010?
- Can the normal duties be completed safely?
- If not, what adjustments are needed to work safely?
- For how long are adjustments likely to be needed?
- Is the condition likely to affect future attendance, performance or conduct work?
- What risk is there to the employee or others if they continue to work?
- What is the usual outlook and timeframe for fitness to work?
- Is a further assessment needed to review progress and fitness to resume work?
Key points for the employer:
- maintain confidentiality;
- use the language of functional capability;
- give clear answers to specific questions;
- whether or not the condition is work related, which is assessed with specialist input;
- consider disability and reasonable adjustments;
- give advice rather than instruction; and
- use clear and open communication.
What does OH need from the employer?
In every management referral there should be a clear reason for the referral, which usually includes details of sickness absence, whether long-term or frequent short-term absences. It is helpful to include an indication of the frequency, the reasons the employee attributes to their sickness absence and copies of self-certificates and fit notes.
The manager should also specify any concerns about performance or work capability and/or conduct that could be underpinned by a health related issue. It should be clear that the employee has been informed about the reasons for the referral and that they agree to the assessment process.
Most large employers make it a condition of employment that employees comply with their procedures but, strictly speaking, if they refuse to participate in an assessment of their fitness to work, managers may simply have to proceed without an assessment or advice from OH.
Even when sickness absence is the given reason for the referral, the OHN may well need to consider work capability and potential conduct issues where relevant.
Where a significant work-related condition or industrial disease reportable under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) is suspected, the opinion of an experienced OH physician should be sought and occasionally a tertiary referral to the relevant specialist should be considered.
In short, OHNs are expected to provide a professional assessment of health and fitness in relation to work, but this does of course cover a broad spectrum of issues.
Managing expectations when responding to OH management referrals
This is not about taking sides. The employer, as the “customer”, will pay for OH services and the OHN usually views the employee as their “client” during the assessment process. The interest of both customer and client may often seem to be at odds, but the OHN must adopt a neutral, professional position.
Assessing fitness for work in the context of both the workplace and the law enables us to ensure the most appropriate options are considered, while safeguarding the health and wellbeing of the employee. If the OH management referral shows any indication that the manager has not understood the OH role, their expectations should be discussed before seeing the client.
If there has been any relevant omission in the referral, ensure the missing information is provided. It is crucial that the OHN is clear from the start about their professional role with both the employer and the employee.
In particular, they need to understand their stand on confidentiality, and how the language of functional capability works.
This is all about effective communication. Sometimes it is about negotiation.
Having a specific clinical label is not essential for the completion of an assessment, or for advising management. The OHN should interpret the clinical features and medical diagnoses into the language of functional capability.
Not only should this help the manager have a more practical understanding of the effects of the condition but it helps limit assumptions and encourages more appropriate problem solving.
Examples of the “language of functional capability” include:
- “Severe depression and anxiety” may be translated into: “Mr X’s condition is causing a marked reduction of his physical stamina and affects his ability to concentrate fully.”
- “Sciatica” may need to be interpreted as: “Ms Y’s condition is limiting her mobility and ability to sit for long periods. She cannot lift or handle even moderately heavy loads or work in a bent or awkward position.”
- “Multiple sclerosis” could be: “Z’s condition is currently in remission and is posing her no difficulty in performing her normal work tasks. However, it is limiting her general physical stamina and her ability to complete her full contracted hours.”
- “Schizophrenia” may be: “A’s condition is characterised by episodes of thought disorder and altered behaviour during which he is unable to work safely.”
Defining disability and application of the Equality Act 2010
Having a thorough knowledge of the definition of disability and the guidance on normal day-to-day activities is essential if appropriate guidance for the employee and manager is to be presented to the employer.
The OHN must be very clear about their opinion on fitness for work, and functional ability. The management referral may include a request for an opinion as to whether or not the employee is likely or unlikely to meet the definition of disability within the meaning of the Equality Act 2010.
It is worth remembering that it is only a court that can make such a decision. Guidance on matters to be taken into account in determining questions relating to the definition of disability is available here. It could be argued that if modifications are required to help the employee return to work or to fulfil the requirements of their post, then it is irrelevant whether or not the Equality Act would apply.
Some referrals will be for people with a very clearly defined disability, either by virtue of their diagnosis or because of the severity and long-term nature of their condition. Without this level of certainty, it is wise to use words such as “likely/unlikely” or even “borderline”. Employers would be wise to manage all borderline cases of disability as if they do meet the definition and make reasonable adjustments to the workplace.
Ultimately, should the case be legally challenged, an employment tribunal would have a final decision in deciding if the employee met the definition of having a disability. The tribunal would not take kindly to an expert witness, in this case the OHN, being pedantic in denying someone their rights to reasonable adjustments.
Exploring reasonable adjustments is beyond the scope of this article but, if the recommendations initially seem unachievable, consider referring the employee to the Government’s Access to Work service for additional resources.
Defining trends and future prognosis
If the OH report gives no indication about the functional capacity of the employee, whether as a trend of recovery or of deterioration, it would be easy for a manager to assume that no change is expected, but this is rarely the case. Of course, OHNs have no crystal ball and so must rely on defining trends and understanding the likely prognosis. For this, a specialist’s report may be required or the OHN may have to do their own research to determine probability of outcomes.
Recovery rates after surgery vary widely but patients are usually provided with useful written guidance about what to expect after an operation. Examples of such guidance notes are published on the websites of the Royal College of Surgeons and the Royal College of Obstetricians and Gynaecologists, for example, and can be used for discussion with an employee who may otherwise dispute the expected outcome offered to management.
For some long-term conditions the employer needs to take into account episodic variation with a degree of realistic uncertainty. So the OHN may need to explain that: “Mr X’s condition is episodic. The frequency, duration and/or severity of these episodes are unpredictable. His condition has been well controlled in the last three years suggesting a favourable outlook for future working.”
Gradual return to work
A wellness and recovery action plan, incorporating a phased return to work, must be one of the most useful rehabilitation tools for the OHN to recommend. However, expectations on timeframes are notoriously variable and often unrealistic. In most instances, a maximum of one month for the work rehabilitation plan often works best.
The employee may well feel that longer is needed, which is usually far less acceptable to the employer. After all, rehabilitation to regain physical and mental stamina begins at home and if a much longer period of recovery really is needed, it is probably best to pace this recovery while still at home where activity levels can be steadily and comfortably increased.
Answering specific questions
Employers will want clear answers to their specific questions. It is always wise to adopt a moderate tone in reports to management. This is about OHNs expressing their professional opinion and presenting appropriate options in terms of reasonable adjustments and future employment. OHNs are advising, not instructing. They also need to avoid vague or unhelpful terms such as “light duties” and give specific guidance wherever possible.
What to consider in the absence of specific questions
Keep the employee informed. Ensuring that the employee clearly understands the clinician’s opinion and recommendations is crucial. This usually starts with a verbal explanation at the time of the assessment. The employee can view the report before it is sent to the employer. In the unlikely event that consent is withheld for release of the report to management, the employer would need to proceed without OH advice.
Any factual errors in the report can be corrected, but be clear that this is not for alteration of the clinician’s opinion. This should help build confidence in the process and so be more likely to result in a successful outcome.
Case management is an important part of the role of the OHN. Writing a succinct and accurate response to a manager is essential if the management of the case is to be successful and the OH service is to add value to the organisation. Key points to bear in mind are that the advice the OHN provides to both parties must be impartial, based on fact and requires an appreciation of when adjustments may be appropriate in line with the requirements of the Equality Act 2010.
The first article of this two-part series “Health history: a systematic method” was published last month’s in Occupational Health and Wellbeing.