on Waddell and Burton’s findings, the review counselled that both employers and workers needed to have a fundamental change in attitude and to realise that people do not need to be 100 per cent fit in order to be at work. Employers should maintain early, regular and sensitive contact with employees to promote return to work and should be proactive in making contact with GPs when an employee was off sick. GPs were central in shaping patients’ views about their ability to work. ‘Despite their best intentions, the advice that healthcare professionals give to their patients can be naturally cautious and may not be in the best interests of the patient for the long term.’
Statistics showed that although the majority of people returned to work relatively quickly after starting a period of sickness absence, a significant minority were off sick for much longer and might eventually progress to worklessness. A patient with back pain whose condition had not resolved quickly might be referred for physiotherapy, and while they were waiting for treatment would continue to be signed off from work by the GP. The review found that early intervention by occupational health services could play a key role in assessing how and when employees could return to appropriate work. They should adopt the ‘biopsychosocial’ model which links the medical condition with its impact on mental health and also its social context. Access to cognitive behaviour therapy for mental health problems had been proved to be particularly effective. The report recommended the creation of a Fit for Work advisory service, provided through the NHS.
As regards the role of occupational health in the new climate, Dame Carol pointed to a number of challenges. The historical separation of occupational health from mainstream health care failed to meet current needs for holistic support. The NHS now needed to move from providing occupational health services only for its own staff, to all the population of working age, whether or not they were actually in work. There needed to be clear standards of practice and formal accreditation for all occupational health providers, a sound academic base to provide research and support, the systematic gathering and analysis of data, and a universal awareness and understanding of the latest evidence of the effectiveness of clinical interventions. Not only that, measures were needed to address the uneven provision of occupational health, especially for workers in SMEs. Advice and information should be more widely available, particularly to small businesses.
The Black Report was criticised for its sparse attention to health and safety, with little mention of risk assessment and enforcement of health and safety legislation. Intervention should be about changing the workplace so that the worker does not become a patient in the first place. But it should be said that the reports and programmes from the HSC/HSE, as set out above, had already dealt with these issues. Up until the Black Report insufficient attention had been paid to rehabilitation, not just for work‐related disease and injury but also for those workers with a disability whose health problems are unrelated to their work, but are prevented from working because of them. At the same time there has been a demographic shift whereby people are living longer and the proportion of the population over retirement age, compared with those of working age, is therefore increasing; it is now necessary for people to work to a greater age in order to support themselves. Older workers are more likely to be living with chronic health conditions and to need occupational health support.
The government published its response to the Black Report in November 2008: Improving Health and Work: Changing Lives (DOH, 2008). It included some ambitious plans but, sadly, the publication of the response coincided with the beginning of an economic recession which led to a period of austerity when public spending was savagely restricted.
A second independent review was commissioned by the government, this time authored by Dame Carol Black and David Frost: Health at Work: an independent review of sickness absence (2011). The government’s response: Fitness for Work: the Government response was published in 2013.
Then, in 2016, the UK voted by a small majority in a referendum to leave the European Union and the resultant political turmoil occupied much of the time of Parliament, the government and the civil service. The second decade of the 21st century proved one of the most testing times in the history of the UK since the end of World War II.
Management of sickness absence
The two independent reviews, the Black Report and the Black/Frost Report, led to changes in the certification of sickness absence and the creation of a publicly‐funded occupational health advisory service which was abandoned after only two years.
In 2008 the employer’s obligation to pay statutory sick pay depended on a GP or hospital doctor certifying on a ‘sick note’, after an absence of more than seven days, that the employee was unfit for work through ill‐health for a stated period.
Dame Carol recommended that doctors should be able to suggest, in appropriate cases, on a ‘fit note’ that an employee, although unable to perform the full duties of his job, could return to work in some capacity if suitable adjustments were made. This was based on evidence that the longer the employee remained out of the workplace the less likely he was ever to return. She also recommended that the Department for Work and Pensions (DWP) commission a free advice service for employers, principally for the benefit of those who had no access to their own occupational health service.
The fit note was introduced in 2010. It allows the doctor to state that the employee is unfit for any work for a period or fit for some work, but not that the employee is fit for all work. The doctor can recommend adjustments to assist the employee to return and four possibilities are available on the note: a phased return, amended job duties, altered hours of work and workplace adaptations. The doctor may write in another option they think appropriate. There is no legal obligation on the employer to comply with any recommendation, but they are well advised to take it seriously and talk it over with the employee to see whether it is reasonably practicable. If the employee has a disability under the Equality Act the employer has a legal duty to make reasonable adjustments (Chapter 8). Fit notes are now recorded electronically. GPs are often reluctant to use the option of suggesting adjustments because of lack of occupational health training. The joint Work and Health Unit of the Department of Health and Social Care/Department for Work and Pensions commissioned guidance from the Council for Work and Health: Talking Work: a guide for Doctors discussing work and work modifications with patients which was published in 2019. The Council for Work and Health is the body set up to represent all the professions involved in the provision of occupational health services. In May 2019 DWP guidance on Statutory Sick Pay was amended to advise that a report from an allied health professional (for example a physiotherapist or occupational therapist) is as satisfactory evidence that the employee is unfit for work as a fit note from a GP or hospital doctor.
In 2015 a new independent health and work advisory and assessment service, Fit for Work, was introduced. This was funded by the state and free to employers and employees. The DWP contracted with a private provider company in England and Wales and NHS Scotland in Scotland to provide the service. GPs were able to refer an employee with their consent to the service and the employer could also refer, with consent, after four weeks’ absence if the GP had not done so. It was primarily a telephone service staffed by OH professionals, although a face to face assessment could exceptionally be requested. Following the assessment, the employee was provided with a return to work plan suggesting measures to assist a return which he could, if he wished, share with the employer. The scheme was abandoned in 2017 because of low referral rates, but a free advice line remains. In addition, if an employer pays for an employee to receive treatment, for example physiotherapy or cognitive behaviour therapy recommended by an OH professional to enable them to remain in or return to work, this is free of tax up to £500 per employee per annum.
In 2019 there was a new initiative led by the Work and Health Unit. The government published a consultation document: Health is everyone’s business: proposals to reduce ill‐health related job loss. Each year more than 100,000 people leave their job following a period of sickness absence lasting at least four weeks. Offering flexibility, early support and occupational health advice are the key to successful retention in the workplace. The consultation is focused on four main areas: amending the legal framework to encourage early action to support individuals