Employment Law in 2010

by Hazel Phillips

Looking forward to 2010, the Queen’s speech, which was delivered last month, mentioned a number of employment law measures.  The two main ones were reassertions by the Government of previous commitments including the progress of the Equality Bill.  This will consolidate all existing discrimination legislation into a single Act.  It is also intended to create greater transparency in relation to pay by, for example, banning “pay secrecy” clauses.

Of perhaps greater significance was the Government’s commitment to putting into place legislation to give agency workers equal rights to permanent staff in relation to pay, holidays and sickness absence.  The Government still intends to implement this legislation in accordance with the agreements that it made in 2008 with the trade unions (which allowed for equal treatment to apply only once an agency worker has been with a company for twelve weeks or more), but the legislation is not scheduled to come into force until October 2011.  However, employers may need to make preparations over the course of the coming year.

Changes to the sick note system are also planned for next year, but the proposal to replace the sick note with a fit note has been met with caution by employers at recent Burnetts’ events.

Back in 2008, Dame Carol Black the National Director for Health and Work produced a report “Working for a healthier tomorrow”. With 2.6 million people on incapacity benefits and increasing numbers of employees absent for more than a month, the Government is keen to get people back to work.

Under the current system, doctors have two options when considering a patient’s fitness for work. These options are “you need not refrain from work” or “you should refrain from work.” Under Dame Carol’s proposals, there will be a third option which would be “you may be fit for some work now”.

The Government has been encouraged by trials of the fit note with GPs. During the trial, GP’s had hypothetical patients with depression, sore backs or both. Using the existing system, 77% were advised to refrain from work. However with a fit note system, only 20% were signed off from work completely - 69% were told they were fit for some work.  GPs also had the option to suggest arrangements patients might agree with their employers to enable them to return to work, such as phased returns.

The fit note raises lots of difficult issues for employers such as what to do if an employee refuses to return to “some work” or how to deal with an employee returning part-time whilst still entitled to full sick pay. There is also a potential for troublesome overlap between fit note arrangements and “reasonable adjustments” in the Disability Discrimination Act. With sickness absence costing £13 billion annually, it’s understandable that the Government wants to see change, but employers and GPs will inevitably face difficulties with this new system.

Regulations regarding the proposed fit notes are expected by Spring 2010. Further information on the fit note is available from www.workingforhealth.gov.uk

Hazel Phillips is a solicitor in Burnetts employment law team. For further information on employment law issues, call Hazel on 01228 552222.

Dec '09