1. Ill-Health For Yolk Recruitment Anna Denton-Jones 21 st October2014

2. navigating employment law Latest figures Average ET award for disability discrimination £16,320 CIPD Annual survey reported: – 1/3 employers seen an increase in ‘presenteeism’ – Average days per employee 7.6 – Public sector 8.7 days – Cost £595 per employee – 2/5 employers report stress related and mental health related absence increasing

3. navigating employment law Preventative measures Isn’t it about time we did more at this end of the problem? What steps do you take in your organisations to try and prevent absence?

4. navigating employment law Dealing with the problem once it has happened What do you worry about?

5. navigating employment law Short-term absence Why might obtaining medical advice be necessary?

6. navigating employment law Long-term absence Why do we need medical advice?

7. navigating employment law When do you get medical advice? Straight away? After absence of 4 weeks? When the sick note highlights an injury caused in work including stress?

8. navigating employment law Who do we go to? GP – Pros – Cons

9. navigating employment law Specialist If the GP has referred their patient to another medical specialist it may be better to go direct to them for a report.

10. navigating employment law Occupational Health Advisers Provide a source of independent, expert guidance in interpreting the available evidence Won’t be in a position to provide a definitive assessment or diagnosis in a given case because they won’t have access to the individual’s medical history and records. Will be able to provide you with advice on what steps you might take to help an employee improve their attendance

11. navigating employment law Occupational Health Advisers Will be able to help you assess, for example, whether a given pattern of absence is likely to be consistent with a stated medical condition, or whether the available evidence suggests some additional underlying factor that hasn’t yet been identified. Should be able to advise you on whether additional information is required and, if so, on the most appropriate sources

12. navigating employment law What are the rules on obtaining consent? Access To Medical Reports Act 1988 – The employer must give the employee a statement of their rights. – The employee must provide written consent to the examination and preparation of the report. – The employee must have the opportunity to see the report before it is sent to the employer. – The employee may request changes to the report but may not insist on them. – The employee may refuse to allow the report to be disclosed to the employer.

13. navigating employment law What are the frustrations? Employee won’t attend or consent

14. navigating employment law Data Protection 1998 Sensitive Personal Data Schedule 2 – The data subject has given his consent to the processing. Schedule 3 – The data subject has given his explicit consent to the processing of the personal data. Employee right to access reports through subject access request mechanism

15. navigating employment law Confidentiality Faculty of Occupational Medicine – “in communicating with managers on the health of employees, it will normally be appropriate only to refer to the results of the health assessment and not the clinical details”. Para 2.2 Ethics for Occupational Physicians

16. navigating employment law Hot spots 1 “Issues with the line manger”

17. navigating employment law Hot spots 2 “Stress caused by problems at work”

18. navigating employment law Hot spots 3 GP’s certificate has run out i.e. - signalled person is fit to return to work but they are exhibiting signs in work that make you think this isn’t the case

19. navigating employment law Hot spots 4 The Fit Note says the employee can perform half their normal hours as part of a phased return to work What do you pay the employee?

20. navigating employment law Hot spots 5 Knowledge of the medical condition – You are deemed to know what your Occupational Health adviser knows when it comes to knowing about a disability.

21. navigating employment law Hot spots 6 The GP and the OH reports conflict Heathrow Express Operating Co Ltd v Jenkins 2006

22. navigating employment law Hot spots 7 Medic and employee’s views differ

23. navigating employment law Still your decision Judgement to make. You may need to weigh up the evidence provided by the GP, by your own occupation health advisers and by other experts, alongside your own requirements as an employer.

24. navigating employment law ? Dismiss “In the final analysis, an employer is entitled to conclude that ‘enough is enough’ and, having investigated the facts, explored the possibility of a medical or other explanation, consulted the employee regularly about the level of absence and followed the disciplinary procedure, any ensuing dismissal is likely to be considered fair”.

25. navigating employment law New Fit for Work Service Health Management Limited (MAXIMUS) Phased in between late 2014 and May 2015 Employees who have been absent 4 weeks + GP referral Return to work plan to be shared with the employer and GP £500 tax relief per employee per annum for medical treatments

26. navigating employment law Support in Swansea, Bridgend, Neath PT www.wellbeingthroughwork.org

27. navigating employment law Health at Work Advice Line - Wales www.healthatworkwales.org.uk

28. navigating employment law Case study Employee: Jane Hoare Job role: HR adviser Length of Service: 1 st September 2011 Absent from work since 16 th August with “anxiety and depression” What information will you give OH? What questions will you ask?

29. navigating employment law Resources www.timetochangewales.org.uk re mental health issueswww.timetochangewales.org.uk www.stress.org.uk www.hse.gov.uk

30. @refreshinglawwww.refreshinglawltd.co.uk Contact Us: adenton@refreshinglawltd.co.uk 029 2059 9993 07977 545480