Job losses ill health

On 15th July, the Government commenced consultation on a new package of proposals designed to reduce ill health-related job losses.

The proposals are aimed at helping the Government to reach its target of having one million more disabled people in work by 2027, and focus on empowering SMEs to intervene in relation to sickness absence at a much earlier stage. The Government’s research indicates that the longer someone is absent from work, the less likely they are to return.

Half of all employed disabled people work in small businesses but the challenges faced by SMEs are not unique. Larger organisations may simply have better access to quality guidance, and occupational health support, to assist them in considering employees returning to work – and any consequential adjustments that need to be made.

It is hoped that by encouraging earlier intervention, businesses and their staff can work more collaboratively in agreeing return to work plans, and adjustments, to help them resume their roles.

Who does this concern?

Currently, the duty to consider making reasonable adjustments to an employee’s role or workplace only applies to those suffering from a disability. The legal definition of disability – in this context – requires a staff member to be suffering from a condition for 12 months or more. This means that many people who have fluctuating or temporary conditions are not covered by this duty, and may remain on sickness absence for longer than necessary.

The Government is therefore proposing to create a new right for all employees – whether or not they are disabled – to request workplace modifications (to encompass not just physical barriers, but also changes to hours of work and duties) for health reasons.

The proposal is that, similarly to flexible working requests, the employer would be able to refuse the request on legitimate business grounds. However, there is no indication at this stage of what would be considered to be a legitimate ground, and whether the employee would need to provide any medical evidence for the request.

Employers will no doubt be concerned about how such a scheme would work in practice, and how they would balance competing requests from staff.

What does this mean for my workforce?

Changes to SSP are also proposed to address the current issue of Statutory Sick Pay (SSP) ceasing to be paid when an employee returns to work, even if it is a phased return. If an employee comes back on reduced hours – as part of a phased return – they are not eligible for SSP and can be worse off financially than if they had remained on sickness absence.

The proposals would enable employees to receive part wages and part SSP during a phased return, and suggest that employers paying enhanced sick pay should mirror the SSP obligations in this regard.

The proposals also include:

  1. A rebate of SSP for SMEs as a financial incentive to demonstrate best practice on managing sickness absence
  2. Removing the lower earnings level threshold ( currently £118 per week) requirement for eligibility for SSP
  3. Increased fines for not paying SSP when it is due; and
  4. Co-funding access to occupational health services for SMEs.

The consultation ends on 7th October 2019.


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Author: Lucy Gordon

Senior Solicitor, ESP Law Ltd

Lucy is an employment solicitor who brings to ESP over a decade’s experience at DLA Piper, one of the world’s most prestigious law firms. At DLA Piper, Lucy was involved in a number of global projects for major international customers and handled a varied case-load of employment matters for a range of UK customers, including complex Employment Tribunal cases involving whistleblowing and TUPE.