The Government has published two consultation papers this week which are of interest to UK employers.  The first paper – Health is everyone’s business – sets out the Government’s proposals to reduce ill health-related job loss.   The second paper – part of the Good Work Plan – proposes the establishment of a new single enforcement body for employment rights.

Health is everyone’s business

The issue of employee wellbeing and good physical and mental health is of paramount importance in the modern workplace.  In recent times, following on from the Stevenson/Farmer Review of Mental Health and Employers, the government has committed to implementing a range of initiatives to better support employees, including setting out proposals in its policy paper response to the Stevenson/Farmer Review: Improving Lives: The Future of Work, Health and Disability. The government is also committed to carrying out its ambitious plan to implement the biggest upgrade to workers’ rights in over 20 years in response to the Taylor Review of Modern Working Practices.

Now, in its publication of a new consultation paper, the government has announced that it must work “hand-in-hand with employers” to reduce ill health-related job loss, whilst stating that, “there is a case for employers to do more to support their employees who are managing health conditions or who are experiencing a period of sickness absence”.

One significant proposal to which employers should pay attention is the introduction of a new right to request workplace modifications on health grounds for employees who do not meet the Equality Act 2010 definition of being a “disabled person”. This would potentially significantly widen employers’ obligations in this regard, albeit it is suggested that a request could be refused on legitimate business grounds.  The government is also seeking views on eligibility for this right, including whether it should be linked to long-term absence (e.g of 4 weeks or more) or, instead, to return to work from a period of sickness absence or, wider still, to simply a demonstrable need for a workplace modification on health grounds.

The government also proposes a Code of Practice could sit alongside this new right to support employers and employees to agree any modifications required.  Activities or modifications which the government highlights as potentially reasonable for employers to undertake include:

• Having a conversation about the employee’s need for a modification;
• Keeping a written record of conversations between employer and employee;
• Seeking expert advice from occupational health services to support decision making; and
• Modifications of working hours/pattern, working tasks/duties, or to the physical environment.

The government proposes that employees who feel that their request for a modification has been unfairly refused, or due process has not been followed, could bring a claim in the employment tribunal.

Other proposals of note for employers are:

• Strengthening statutory guidance to support 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;
• Extending Statutory Sick Pay (SSP) to those who earn less that the Lower Earnings Limit (currently £118 per week);
• Reforming SSP to allow for greater flexibility in returning to work following sickness absence;
• Imposing fines on employers who fail to pay SSP where it is due;
• Enforcing SSP through a new single, labour market enforcement body;
• Requiring employers to automatically report sickness absence through their payroll system;
• Improving the provision of advice and information to support management of health in the workplace and encourage better informed purchasing of expert led advice;
• Reducing the costs for SMEs of purchasing occupational health services.

The consultation closes on 7 October 2019.  For now, employers need to keep the proposals on their radar and consider what impact they may have on their business in the future as part of any strategy planning.  Although we shall have to wait and see what the final obligations for employers are, this latest consultation paper serves to confirm that the government’s desire to significantly increase worker rights is here to stay and employers should maintain a keen watching brief in this regard.

Labour market enforcement body

The government’s proposals to establish a single body to improve the enforcement of employment rights is the latest measure intended to advance the “Good work plan” which was published in response to the Taylor Review.

Matthew Taylor has been appointed as the interim Director of Labour Market Enforcement. The Immigration Act 2016 established the role of Director of Labour Market Enforcement in order to set the strategic direction for the core employment rights enforcement bodies, and provide a more joined up approach. The first chair, Professor Sir David Metcalf, was appointed on 1 January 2017. The areas under the Director’s remit are:

• Employment Agency Standards Inspectorate (EAS)
• Gangmasters and Labour Abuse Authority (GLAA)
• HMRC National Minimum Wage team (HMRC-NMW)

The Director of Labour Market Enforcement has a number of statutory duties:

• To set the strategic direction of the enforcement bodies through an annual strategy;
• To publish an annual report, assessing the impact of the previous strategy; and
• To develop an intelligence hub, to provide a single view of risk and priorities across the
• spectrum of non-compliance.

The consultation states that the logical next step is to explore the case for creating a new single labour market enforcement body to provide better support for workers. The proposed remit would be:

• National Minimum Wage;
• Employment agencies;
• Umbrella companies;
• Licences to supply temporary labour in high risk sectors (gangmasters);
• Labour exploitation and modern slavery; and
• Holiday pay for vulnerable workers. Vulnerable workers are not defined so it is unclear how much of a role the government is proposing the state should take in holiday pay enforcement.

This proposal would bring together the core employment rights where the state takes an enforcement role within one body with the ability to tackle the full range of  non-compliance. Potentially enforcement of SSP and employment tribunal awards could also be covered.