Overview
As a result of social and legal developments the process of determining fitness for work has become increasingly important
Guidance on the medical aspects of fitness for work is plentiful; guidance on fitness decision-making is scarce
Core knowledge, common sense and cooperation between medical advisor, employer and job applicant or employee should produce a positive outcome in the majority of cases
When significant fitness issues arise, clear understanding of roles and a structured approach is essential
An agreed process and full participation of the key players is the best way to ensure sustainable decisions and fair outcomes.
Assessments of fitness for work can be important for job applicants, employees and employers. Unfitness because of an acute illness is normally self-evident and uncontentious, but assessing fitness in other cases may not be straightforward and can have serious financial and legal implications for those concerned. Commercial viability, efficiency, health and safety and legal responsibilities lie behind the fitness requirements of employers, and it may be legitimate to discriminate against people with medical conditions on these grounds. Unnecessary discrimination, however, is counterproductive and may be costly if legislation is breached. Employers tend to rely on occupational health practitioners when specific fitness advice is required and on general practitioners and hospital doctors for advice provided via certification. Evidence-based standards for physical fitness, eyesight, hearing, etc., may apply to some occupations. But for most medical conditions, prescriptive standards and blanket restrictions that existed before the advent of anti-discrimination legislation have been replaced by the need for individual assessments, adjustments and decisions on a case-by-case basis. As a result of this and the associated lack of easy-to-apply screening measures, the process of fitness determination and the responsibilities of the participants have become increasingly important.
Outline
The issue of an individual’s fitness for specified work is the focus of this chapter and it arises in a variety of employment situations (Box 7.1). Common to all is the broad aim of ensuring as far as is possible the productive and safe employment of the job applicant or employee. Key requirements act as driving forces behind this aim and underpin the process of achieving it: these are statutory and common-law duties, ethical obligations, prevailing social policy and employers’ business needs. There are key roles for medical advisors, employers and the subject, i.e. the job applicant or serving employee. In principle, the assessment and decision-making process involves assessing the subject’s medical and functional status against the job requirements and deciding on the acceptability of any enabling options and residual fitness issues. In practice this process may involve three or more substantive components or steps, depending on the circumstances of the case. For a framework with general application that integrates the key roles, nine potential steps are identified and explained. This outline is set out in Figure 7.1 and it provides a template for the chapter’s format and headings.
- Before making an offer of employment, placement or redeployment
- Routine surveillance in safety critical jobs
- During or after sickness absence
- To identify adjustment needs
- When attendance or performance issues arise
- If health and safety concerns arise
- To examine ill-health retirement issues
- If required by statute
- To determine entitlement to state benefits
The issue of fitness or unfitness for all work is the basic determinant of entitlement to some UK state benefits and some occupational pension scheme benefits. Responsibility for the processes required to deal with this broader issue rests with the Department for Work and Pensions (DWP) or the relevant pension scheme administrators.
Key Requirements
Equality Act 2010
This replaces the Disability Discrimination Act 1995(DDA) and consolidates all discrimination legislation, making it unlawful for employers to discriminate against individuals on grounds of disability, age, sex and other protected characteristics unless the discrimination is a proportionate means of achieving a legitimate aim. The central requirement to make reasonable adjustments remains. Advancing the spirit of the DDA, it has removed unnecessary medicalization of recruitment processes by only permitting occupationally-relevant medical questioning directly relating to questions immediately at issue.
Employment Rights Act 1996
Requires procedural standards of fairness before any decision to dismiss an employee can be taken.
Heath and Safety at Work etc. Act 1974
Places a far reaching responsibility on employers to reduce risk so far as is reasonably practicable. The related responsibility to undertake suitable and sufficient assessment may create the need for pre-employment and in-service medical questionnaires and examinations, particularly in occupations involving safety-critical activities. The concept of reasonable practicability allows for consideration of socioeconomic factors and the use of a cost-benefit balance for resolving conflicting objectives of risk-reduction and equality of opportunity.
Common Law Duties
Impart responsibilities of care to prevent reasonably foreseeable risks which mirror or supplement the above legislation. The financial penalties of successful claims for occupational injury and diseases or for wrongful dismissal add to the importance of an effective and equitable assessment process. Cases have established important precedents relevant to fitness assessment and decisions (see Chapter 5).
Ethical Obligations
The Faculty of Occupational Medicine affirms that doctors should not presume to decide for others whether risks are acceptable. The General Medical Council recommends that informed consent should be obtained from the job applicant or employee before any report on fitness is given to the employer, and that subjects should be given the opportunity to see and comment on reports in draft. Disclosure without consent is limited to exceptional situations and subject to strict conditions (see Chapter 6).
Social Policy
Over the last decade, rehabilitation back to work, and an emphasis on capability rather than limitations, have continued as central themes behind government policies and guidance on health and safety and occupational health. There is increasing acceptance that work is good for the vast majority of people in a majority of jobs, and that the benefits of work should not be overlooked or subordinated within an unduly risk-averse ideology (see Chapter 2). Building on these developments, in 2010 the DWP fundamentally changed the certification process. Hospital doctors and general practitioners are now required to issue ‘fit notes’ instead of ‘sick notes’, encouraging adjustments and early rehabilitation. Pathways back to employment have also been incorporated into state benefit assessment processes (see WCA Boxes 07.0002 and 07.0003).
- Introduced in Oct 2008 replacing personal capacity assessment
- Determines entitlement to Employment & Support Allowance
- Process and criteria set in social security legislation
- Assesses limited capability for work and work-related activity
- High rates of unsuccessful claims and successful appeals
- Aspects of assessment have been called into question
- First independent review in November 2010*
- Review identified clear and consistent criticisms
- Review’s 25 recommendations all accepted by Government
*An Independent Review of the Work Capability Assessment—Professor Malcolm Harrington, Nov 2010 (via DWP Home page)
- Introduced in April 2010—replacing the ‘sick note’
- Highlights potential for early rehabilitation and continued working
- Includes four boxes to identify enabling options:
| ° a phased return to work | ° amended duties |
| ° altered hours | ° workplace adaptations |
- Provides space for comment and functional effects of condition
- Establishes constructive roles for GP, employee and employer
- Provides link for OH practitioner advice if required
- Extends good OH practice across employment spectrum
Employers’ Business Needs
The job applicant’s or employee’s productivity in terms of attendance and performance must meet the levels necessary for commercial success in the private sector or for the equivalent best-value criteria in the public sector. There will be limits to the productivity concessions that an employer can accommodate and this may be the basis for a legitimate and lawful decision of incapability for the job from unfitness.
Key Roles and Responsibilities
Of the many potential contributors to fitness assessments, the key roles fall into three categories, Employer, Medical Advisor and Applicant/Employee. Management representation for the employers’ role may include human resources, health and safety, and operational staff. Occupational health practitioners may take on all the responsibilities of the medical advisor role. GPs and hospital practitioners (HPs) may follow the same approach but with a more limited input. The subject of the assessment will either be a job applicant or a serving employee, and from a GP or HP perspective, maybe a recovering patient. As treating clinicians, GPs HPs and other healthcare professionals involved with a case may have an important supporting role in supplying relevant clinical information, with the patient’s consent. The key roles and responsibilities are outlined below.
Employer
- To provide job description, person specification and employment details.
- To identify any pre-determined standards.
- To supply occupationally relevant questionnaire if required.
- To explore enabling options identified by GP, Medical Advisor, Employee or Applicant.
- To duly consider medical advisor recommendations.
- To take the decisions if or when fitness issues arise.
Medical advisor
- To assess the subject against the job requirements and work environment.
- To identify enabling options if needed.
- To identify any residual fitness issues.
- To apply any pre-determined standards.
- To consider the prognosis of any health problem, and its clinical management to date.
- To make recommendations on fitness or unfitness when applicable.
- To liaise with the treating clinicians to get further information for assessment, or advise on management.
- To advise on management issues (optional).
- To present assessment report.
Applicant/employee
- To consider the job description, person specification and employment details.
- To complete and return questionnaire if needed.
- To attend medical assessment if needed and supply information for assessment.
- To identify any preferred enabling options.
- To provide personal views on any residual fitness issues.
- To submit evidence or comments for assessment report.
- To consent for making assessment report available to management.
Process in Principle
How should the above requirements, roles and responsibilities be consolidated into a process that can be readily applied to most cases and clearly understood by all the participants? Although guidance on the assessment and medical aspects of fitness for work is plentiful (see Further reading and Useful websites), little has be published on the decision-making and management aspects of the process. This absence of an established end-to-end process, and consequent confusion of roles, was identified in a systematic review of the subject in 2006 (see Signpost 1).
Previous editions of this chapter proposed a nine-step framework beginning with three steps: assessing medical and functional status, considering occupational factors and, if necessary, exploring enabling options. Any residual fitness issues are then identified in up to three more steps which represent the core fitness criteria of attendance and performance, health and safety risks to others and health and safety risks to self. Three further steps provided options for reporting the outcome to management.
The 2006 systematic review began its analysis with reference to the original ABC Fitness for Work chapter and the three core fitness criteria advanced within it. In this edition we build on these foundations, giving more attention to the integration of the key roles and the practicalities of the process.
Process in Practice
The practical aspects of each of the nine steps, from the perspective of the medical advisors’ role, are outlined below. Figure 7.2 provides a practical framework by identifying the nine potential steps together with the key roles and responsibilities. This should be used as a flexible guide as the number of steps needed, their precise sequence, and the inter-play of roles may vary depending on the circumstances of the case.
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