Alex Fricke: Legal issues around staff health and wellbeing

There are legal matters employers must consider when implementing a health and wellbeing programme

Ensure employment contracts and/or applicable policies clearly set out the organisation’s approach to sickness absence. For example, how many days will be paid under a contractual sick pay scheme and is the employer entitled to seek a medical report?

Review provisions regarding any private health insurance cover. Ensure that there is express linkage to the terms of the policy and acceptance of claims by the provider. Reserve the right to change the level of benefits or, indeed, remove them altogether.

Be alive to the possibility that an employee who has been off on sick leave could qualify as disabled under the Equality Act 2010. Where this is the case, care must be taken to avoid discrimination, and to comply with the duty to make reasonable adjustments.

Consider flexible working options. For employees on sick leave who qualify as disabled, a fl exible working arrangement may amount to a reasonable adjustment. Offering flexible working more broadly could also result in a reduction in overall sickness absence.

Keep in touch

Keep in touch. Appropriate, sensitive contact, both at an early stage and on an ongoing basis, can be an important factor in securing a swift return to work for employees. Use the opportunity to remind employees about employerfunded support, such as occupational health services, as well as to discuss any potential adjustments that could be made. Occupational health advice can be invaluable, because it may be reasonable to prefer an occupational health adviser’s recommendations to those made by an employee’s doctor in the form of a fit note or otherwise.

Check the interaction between the organisation’s sickness and annual leave policies, and sign up for alerts to ongoing case law developments in this area. The most recent legal cases indicate that in order to comply with the Working Time Regulations 1998, an employer should allow four weeks’ statutory leave to be carried over when an employee on long-term sick leave does not take their holiday. But that carry-over should not continue indefinitely.

Do not forget data protection. Information relating to physical or mental health is classed as sensitive personal data, so special consideration should be given to how certain absences are recorded, for example where they relate to disability or pregnancy.

Workplace stress

Be vigilant to workplace stress, whether caused by inappropriate workloads, duties that have the potential to cause mental trauma, or bullying or harassment. Heed early warning signs and take remedial action. Liability can arise under many different heads, including contract, common law tort, the Equality Act 2010 and the Protection from Harassment Act 1997.

Consider whether to include agency workers in wellbeing initiatives. From 1 October 2011, an agency worker has a ‘day one’ right to be treated no less favourably than a comparable worker in relation to ‘collective facilities and amenities’, unless less favourable treatment can be objectively justified. Guidance from the UK Department for Business, Innovation and Skills sets out things that may fall within the definition of ‘collective facilities and amenities’.

Be prepared for situations where increased absenteeism may be a particular problem or concern. Examples include a major sporting event such as the World Cup, or where there are reports of a possible outbreak of swine flu or some other virus. Consider modifying or putting in place a specific policy for such situations.

Alex Fricke is an associate in Freshfields Bruckhaus Deringer’s employment, pensions and benefits team