Workplace Health Law Current issues Simon Ost, Partner

2. Current issues in the workplace Many health related issues in the workplace Fit notes Pre-employment health enquiries The new disability provisions within the Equality Act 2010 The changing prism through which health related issues in the workplace are seen: Nature of employment relationship Cultural behaviour

3. Fit Notes Originated with Dame Carol Black�s review of the health of the working age population Designed to change perceptions of the relationship between health and work Previous �Sick note� system: insufficient training to healthcare professionals all or nothing encouraged cautious advice Resonated with Employers� perception and frustration with provision of sick notes Recommended new �Fit note� system to focus on what could be done

4. Fit Notes New �Fit note� system implemented on 6 April 2010 Provides three options for GP: GP does not issue a fit note GP issues a fit note stating �may be fit for some work taking into account the following advice� GP issues a fit note stating �not fit for work� for stated period of time Provides non-exhaustive list of commonly recommended steps to facilitate return GP can insert other step(s) into the �comments� box along with comments on functional effects of condition

5. Fit Notes Current issues for employers: What happens if the employer does not carry out recommended steps? Employee does not return to work Sick pay entitlement - treat as if �not fit for work� Breach of contract/Unfair dismissal risk � breach of mutual trust and confidence Disability Discrimination risk � reasonable adjustments if condition amounts to disability Is compliance with recommended steps sufficient? No � only a starting point Disability Discrimination risk � reasonable adjustments generally Consult with employee Detailed informed consultation with GP and/or specialist

6. Fit Notes Current issues for employers: Is the new system changing practice? Anecdotal evidence = little difference Most GP�s opting for �not fit for work� Concerns from GPs re: knowledge of workplace DWP sponsored workshops planned until March 2011 Can an employer challenge the GP�s finding on a medical certificate? Yes medical certificate is not conclusive � part of the �evidential jigsaw� Hutchinson v Enfield Rolling Mills Ltd (1981)

7. Fit Notes Recommended Employer Actions: Review absence management processes to ensure that any fit notes received: are properly assessed (not treated as simple yes/no certificates) trigger a careful consideration of any recommended steps are rejected are treated as the start of a dialogue with the GP do not limit the consideration of adjustments Provide training to individuals who are responsible for managing/administering the absence management process

8. Pre-employment enquiries about Health Concern about (i) active discrimination and (ii) passive deterrent effect Government response: New prohibition against asking job applicant about health before offering work - Section 60(1) of the Equality Act 2010 There are exceptions including: To assess need for reasonable adjustments in recruitment process To assess ability to undertake a function that is fundamental to role To monitor diversity To support positive action for disabled persons To assess a general occupational requirement for worker with disability

9. Pre-employment enquiries about Health Recommended Employer Actions: Review recruitment policies, process and documentation (eg questionnaires) to identify any health related questions Assess whether questions and circumstances come within any of the listed exceptions Provide training to individuals who are responsible for recruitment process

10. The Equality Act 2010 � Dealing with Disability The new Equality Act is intended to harmonise, simplify and strengthen previous legislation Replaces 9 major pieces of legislation and 105 other related enactments Retains broad structure of previous legislation Makes various amendments to increase consistency, accessibility and effectiveness There are important changes to the obligations upon employers when dealing with disabled employees Majority of Equality Act 2010 came into force on 1 October 2010

11. The Equality Act 2010 � Dealing with Disability Definition of disability within Equality Act 2010 is largely the same (s6(1) & Sch 1) A physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities� Maintains previously excluded conditions Removed previous exhaustive list of capacities used to assess impact on normal �day to day� activities. New �Part D Guidance� � things that people do on a regular or daily basis Appendix sets out illustrative non-exhaustive list of factors which would/would not amount to substantial adverse effect

12. The Equality Act 2010 � Dealing with Disability Employers must now avoid four types of disability related prohibited conduct Direct discrimination (s13) Less favourable treatment because of the disability itself Includes �perceived� discrimination Includes �associative� discrimination More favourable treatment of disabled person is not discrimination (s13(3)) Discrimination arising from a disability (s15) Less favourable treatment because of something arising from a disability (unless it is a proportionate means of achieving a legitimate aim) Removes need for comparator

13. The Equality Act 2010 � Dealing with Disability Indirect discrimination (s19) Provision, criterion or practice which puts persons with that characteristic at a particular disadvantage (unless it is a proportionate means of achieving a legitimate aim) Comparator pool = persons with same characteristic (i.e. same disability) Failure to make reasonable adjustments (s21) Where there is a provision, criterion or practice or physical feature which puts disabled person at substantial disadvantage compared to non-disabled person Employer required to take such steps as are reasonable to avoid the disadvantage Lack of knowledge defence if the Employer does not know and could not reasonably be expected to know that individual has a disability and is likely to be placed at the disadvantage (s8(20) New provision re adjustments for �Auxiliary Aids�

14. The Equality Act 2010 � Dealing with Disability Recommended Employer Actions: Review all policies, processes and documentation to comply with Equality Act - there are important changes for disability discrimination (and other areas) and claims are easier to bring Provide training to line managers who will manage the real life situations as they arise Provide detailed training to the HR team who will advise the business once an issue has arisen Update and provide (regular) training to all workers on their equality obligations as employees