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May 8, 2024

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Legal update: The year ahead for workplace wellbeing  

The health and safety team at law firm, Fieldfisher, joined SHP for a fireside discussion of some of the worker health and wellbeing changes currently being considered in the UK.  

Andrew Sanderson, Partner at Fieldfisher

“The first quarter of 2024 feels like it has been really dominated by conversations about worker health and well-being, from occupational health through to flexible working. And while many of these topics have been announced in isolation, when you take a step back and view the landscape as a whole, you can really see how much these measures will also feed into one another,” started Andrew Sanderson, Partner and Head of the Health and Safety Group.

On 19 April 2024, Prime Minister Rishi Sunak announced a swathe of proposals to reform the wider work, benefits and social care systems in the UK, with the intention of improving worker health and wellbeing, and maximising economy recovery in the workforce.

A government briefing paper suggests that over one fifth of workers in Britain when surveyed had worked from home at least one day in the prior week, compared with just 11% reporting the same in 2019.

“We are all aware that the covid-19 pandemic had a disrupting effect on the workforce, and most acutely, in how and where many people are working,” explains Kieran Tomlinson. “At the time, it was difficult to assess what the longer-term impacts of this change would be and what we see now, fours years on, is that those who are able to work more flexibly and more remotely, are opting to do.

“What is striking, however, is that despite the reported health and wellbeing benefits afforded by a more flexible approach to work, the most recent HSE work-related health and injury statistics reveal that self-reported work-related stress, anxiety and depression remain at a consistently higher level than pre-pandemic. It should come as no surprise then that the Government is turning its focus to the overall health and wellbeing experience of workers, and the measures that could be implemented to reduce the economic detriment of workers being too unwell to work.”

Flexible Working Legislation

Kieran Tomlinson at Fieldfisher

The Employment Relations (Flexible Working) Act 2023 came into force effective 1 April 2024. Our friend and colleague, Alex Watson, has detailed more about the impacts of the changes here, but in a nutshell, the statutory framework under which a worker can request flexible working arrangements has widened. Post-pandemic, flexibility has become a key driver for our workforce, and last year, almost a quarter of British workers surveyed reported that they would turn down their ‘dream job’ if they were required to work in the office five days a week.

“Against that backdrop, it is obviously really important that organisations get their flexible working arrangements right,” explains Andrew Sanderson. “We need to make sure that we are balancing the overall health and wellbeing benefits of flexible or hybrid working with an assessment of any risks to our workers while they’re working otherwise than in the office. For example, it could be quite easy to minimise a slips, trips and falls hazard in a communal area of an office, but it is difficult to control for risks at home.” Another aspect to flexible working is the physical set-up available for workers.

So, what will this mean for employers?

“During the early stages of the pandemic, a lot of people simply made do with hunching over their kitchen table to work. It was understood to be a short-term, but non-ideal, way of working. In conventional working environments, we are all accustomed to ensuring that correct work-station set-ups have been put in place, controlling for glare, comfort, balance and ergonomics.

“We would really recommend that employers give full consideration to the environment of their workers when not physically in their office or usual site location. You want to be sure that all the correct adjustments and equipment have been put in place,” continued Andrew.

Changing our outlook on Occupational Health

houses of parliamentIn February 2024, the UK Government announced new initiatives aimed at maximising participation in the workforce and tackling work-related sickness. Rachel Wickham has looked at the proposals for a new ‘Occupational Health Taskforce’, a collaboration between the Department for Work and Pensions and the Department of Health and Social Care.

“At present, only 45% of workers have access to some form of occupational health service, which equates to only 28% of employers in Britain providing such services. Large employers are nearly 3 times more likely than Small-Medium Enterprises (SMEs) to provide this. We know that the economic cost of lost working days can be huge – the HSE estimated over £20 billion for the 2021/22 year – and the Government hopes that improvements to occupational health services will have a knock-on effect of improving worker wellness,” said Rachel.

The Occupational Health Taskforce will be chaired by Dame Carol Black, the former President of the Royal College of Physicians. The Taskforce will develop a framework to help business to prevent work-related sickness and to empower workers back into the workplace following a period of ill health. Further aims of the Taskforce include:

  • increasing information for employers on occupational health and the benefits it can offer for retaining employees;
  • empowering employers to play an active role in improving employee health;
  • removing barriers to the offering of occupational health by focusing on SMEs with restricted finances and by ensuring that the Framework is applicable across sectors; and
  • looking at how occupational health services can complement other existing health and disability workplace initiatives, including where occupational health is required by law.

In addition to the Occupational Health Taskforce, further investment has been committed into the Occupational Health Innovation Fund. Previously, a grant of £1million was shared between 10 organisations, and now a further £1.5 million will be divided amongst five cornerstone projects aiming to provide occupation health services to SMEs.

So, what will this mean for employers?

“The first phase of the Innovation Fund was invested in the development of new technologies created to improve the health outcomes of workers in smaller businesses,” described Rachel.

“The second phase will now provide more investment to five of those ten phase one organisations, to further develop their respective technologies. The projects include the creation of AI-powered apps which can monitor health trends and flag the early signs of ill-health amongst users, and support packages for those living with Long Covid. The overarching aim appears to be utilising technology to improve occupational health outcomes in a manner that is accessible and affordable for smaller employers.”

“We know that the loss of working days can have a disproportionate impact on small businesses, so innovation schemes like these, where smaller businesses can access new tools to improve their processes without a heavy financial burden, really could be a game-changer, for employers and for their workers who will benefit from the additional support” continued Andrew Sanderson.

Proposed reforms to fitness for work

The Prime Minister announced a plan to overhaul the current system of workplace support and benefits. The proposed reforms would seek to overhaul the benefits system and to change the ‘fit note’ system, which is the system by which workers are certified to be (un)well for work.

“The language being used is not new. The Prime Minister’s 2023 ‘New Year Pledges’ spoke of ‘re-wiring the benefits system’ and Work and Pensions Secretary, Mel Stride MP, at the time remarked on what he called the perversity of a system that required you prove how sick you are, and that better support was needed to encourage people to think about the type of work they can do,” commented Kieran Tomlinson.

According to Government statistics, almost eleven million ‘fit notes’ were issued in the previous year, of which 94% of the workers were declared ‘not fit for work’ and concerns have been raised within Government that large numbers of workers are being arbitrarily signed-off work without sufficient discussion about what support could ensure they remain in the workforce.

A public call for evidence has been launched, which will ask respondents to consider what improvements could be made to the existing system of ‘fit notes’. The consultation can be completed online and will remain open until 8 July 2024.

“One of the potential options under consideration is a shift in responsibility for ‘fit notes’ away from GPs and into the hands of independent assessors, which is similar to the current assessment system for personal independence payments,” continued Kieran.

The Government feels that moving the responsibility away from GPs would allow workers to undergo their assessments with qualified practitioners who have more time and expertise to assess ability to work, and to appraise the types of support that could be put in place.

“Another suggestion has been to reframe the content of the fit notes themselves, so that the focus is what work a person could do, or, with the right support in place, whether they could be fit to work.”

So, what will this mean for employers?

Rachel Wickham at Fieldfisher

“Fitness for work, disabilities, and occupational health all go hand-in-hand. Whilst the Government’s proposals seek to empower people back into the workforce, employers will want to be mindful of the reasons why their workers might not be well-enough for work,” Kieran Tomlinson told SHP. “It will mean finding that balance between helping your workers get themselves back into the workforce, and ensuring that they remain healthy and well whilst in the workplace.

This is where occupational health services can be critical. It is also worth making sure your organisation’s policies for reasonable workplace adjustments are up-to-date and known to your workforce.”

These proposed reforms are obviously still in a really early stage. We would anticipate responses in respect of the call for evidence shaping any changes to the existing system, so realistically, it could be autumn before we see more concrete proposals.

Any reforms will necessarily need to be accompanied by guidance from the Government, especially, we expect, around this idea of “work that workers could be fit for” and how, when faced with a situation where a worker may no longer be well enough for their present role, an employer may accommodate different work for them.

Andrew Sanderson is a Partner in Fieldfisher’s London office, and leads the Health and Safety Group, which is a regular collaborator with SHP. Kieran Tomlinson is a Senior Legal Professional in the Health and Safety Group, and Rachel Wickham is a seconded Trainee Solicitor.

A guide for managers: Supporting employee wellbeing

This guide, written by Heather Beach, Founder of The Healthy Work Company, serves as a go-to resource to help managers support team members who may be experiencing stress or struggling with their mental health, including warning signs, duty of care and top tips.

Wellbeing Conversations for Managers

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