The proposals posit a holistic set of legislative and good practice measures, including:

• Introducing a new statutory right for employees (who are not covered under the duty to make reasonable adjustments under the Equality Act) to request work(place) modification(s) on health grounds;
• A requirement for employers to report sickness absence to government through their payroll system – so that government could provide timely and targeted prompts to SMEs on how best to manage their employee’s sickness absence;
• Reforming Statutory Sick Pay so that it is better enforced, more flexible and covers the lowest paid and, potentially, rewards effective action with a new rebate;
• Improving access to occupational health services with additional support for small employers; and
• Government to provide best practice advice and support for employers on managing health and disability in the workplace.

A new right to request

Currently, an employer must seriously consider reasonable adjustments for disabled people. Under the Equality Act 2010, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, the reasonable adjustment duty under the Equality Act doesn’t apply more widely than this, so doesn’t apply to a person with a health condition and/or or someone on sickness absence from work.

One far-reaching proposal in the consultation is the introduction of a new right to request work(place) modifications on health grounds, empowering those employees not covered by the reasonable adjustments duty to seek the support they need from their employer. The consultation is seeking views on eligibility for the new right – for example, should it apply to an employee returning to work after a period of long-term sickness absence of four or more weeks or any employee who is able to demonstrate a need for a work(place) modification on health grounds?

If the latter eligibility criterion is introduced, the new right to request could potentially reach a large cohort of people with a health condition who currently fall outside the definition of having a disability. The Government is also seeking feedback on what should be considered ‘legitimate business reasons’ for an employer to refuse a request, including the extent of an employer’s financial or other resources or the extent to which it would impact on productivity.

We need more transformative change

Some of the proposals in the consultation paper could be considered quite radical, but these are justified given the big step change needed to create fully inclusive workplaces where employers are proactive and intervene early to support employees and help prevent health issues from escalating. This perspective is backed up by CIPD research. Last year we surveyed HR professionals on the opportunities and challenges that their organisations experience in recruiting, managing and retaining people with a disability and/or health condition. The published CIPD/Simplyhealth Health and Wellbeing at Work 2018 survey report found that over two-thirds of organisations have a framework in place to manage people with a disability or long-term health condition, but most experience challenges in managing people with these conditions.

Building line manager knowledge and confidence and developing an understanding about making reasonable adjustments were by far the most common challenges reported. So, there is important learning here for organisations if and when the new right to request work(place) modifications is implemented. A workplace adjustment process that is well communicated to line managers and employees is fundamental to facilitating effective working arrangements for people with a disability or health condition, and yet less than a third said they had adopted this approach. Less than a quarter had raised awareness of disability-related issues in the workplace, an approach which, if practised more widely, could help to facilitate real progress in the inclusivity of the working environment in relation to disability and health issues.

Encouraging early action from employers during sickness absence

The consultation paper says that good standards of supporting employees during sickness absence are not universally adopted. It aims to encourage employers to take early, sustained and proportionate steps to support a sick employee to return to work, before that employee can be fairly dismissed on the grounds of ill health affecting their capability.

Government believes that strengthened statutory guidance could aid the return to work process by supporting employers to identify and, where reasonable, to remove barriers preventing a return to work. This guidance would be intended to provide more legal direction than currently exists, but would avoid being too prescriptive, and avoid seeking to create a step-by-step process. It would recognise the different circumstances of each case, and that expectations for providing support should be fair and proportionate. The Government also wants to give employers the flexibility to determine, in discussion with their employees, what that support is and how it is best provided.

Guidance could cover such things as:

• maintaining contact with the workplace and providing transitional work arrangements
• early and considerate contact by the workplace
• involvement and training of line managers in the planning of an employee’s return to work
• co-ordination and communication between the employer, employee and healthcare or occupational health professionals.

The consultation seeks views on areas such as:

• Is there a case for strengthened statutory guidance that prompts employers to demonstrate that they have taken early, sustained and proportionate action to support employees’ return to work?
• If yes, would principle-based guidance provide employers with sufficient clarity on their obligations, or should guidance set out more specific actions for employers to take?
• What would be the most effective ways in which an employer could demonstrate that they had taken – or sought to take – early, sustained and proportionate action to help an employee return to work? For example, this could be a note of a conversation, or a formal write-up.

The HR profession has to play its part

The CIPD believes that UK workplaces can play a vital role in improving people’s health and wellbeing and we welcome the proposals set out in the consultation paper. As the voice of a worldwide community of more than 150,000 HR professionals working in the fields of people management and development, our members have the potential to play a pivotal role in helping to achieve a much wider and more sustainable integration of health and wellbeing and disability inclusive practices at work.

Affecting the necessary cultural and practical change in organisations to achieve a real step change in narrowing the disability employment gap and significantly reducing ill health-related job loss starts with the core of our HR membership. However, our reach goes much further in terms of influencing wider management practice in organisations. Given that responsibility for supporting employees with a disability and/or health condition on a day-to-day basis is likely to be devolved to line managers in most organisations, this wider reach is essential.

This consultation builds on the Government’s previous Green Paper and consultation Work, health and disability: improving lives, to which the CIPD also submitted an evidence-based response. We will be consulting with our members and experts on these new proposals to ensure that the feedback we give to Government is evidence-based and that any reforms achieve the desired aims.