Victoria Schofield: How much responsibility should employers have towards employee healthcare?

Chairman of Asda Lord Stuart Rose recently – and controversially – stated that employers should be legally obliged to support their employees’ health.

So where does the law currently stand in terms of the duties it imposes upon employers. And how would Lord Rose intend the law to be extended?

Currently, there are remedies available to employees whose employers fail to look after their health, but these are claims that an individual might bring after being failed by their employer, such as stress at work, personal injury or disability discrimination claims for reasonable adjustments under section 20 of the Equality Act 2010: Adjustments should be made to an employee’s system or place of work, where the employer knows that an employee is disabled and is put at a disadvantage by some aspect of their work or workplace, and therefore more likely to suffer an injury/disadvantage than an able bodied comparator.

There are few laws that mandate an employer to actively protect their employees’ welfare, but these are mainly contained within health and safety legislation such as the Health and Safety at Work Act 1974.

There is, however, much more emphasis on employers being aware of and taking steps to protect their employees’ mental health these days. Since July 2019, ACAS and the TUC have published their own guide on this and there have been studies such as The Stevenson/Farmer review of mental health and employers. The Health and Safety Executive has also published guidance for businesses and employers: HSE management standards for work-related stress.

The Health and Safety Executive recommends a five-step approach to risk assessments for work-related stress. By following this correctly an employer will demonstrate that it has taken a “suitable and sufficient” approach to its duty to undertake a risk assessment to protect employees from stress at work:

Identify the stress risk factor
Decide who might be harmed and how
Evaluate the risks and develop solutions
Record findings
Monitor and review the action plan and assess effectiveness

Interestingly, what Lord Rose seems to suggest is a situation where the employer steps into the shoes of the NHS by identifying health care need and if necessary, providing basic health care provision. Some employers already do provide this type of old fashioned philanthropic care, for example by providing on-site chiropody or physiotherapist services in physically demanding workplaces, to try to keep a healthy workforce and minimise sickness absence and of course minimise the risk of claims against the business. In fact, Lord Rose has referred to his own experience of providing breakfast and even breast screening services at Marks and Spencer. However, this is rather different to employers being mandated by law to protect their employees health. The idea is sound, but in practice, could be difficult to enact and legislate for.

If Lord Rose is suggesting that employers step into the shoes of the NHS to provide basic healthcare provision/protection, then robust legislation would be required to enforce this as an obligation, including consideration of GDPR provisions. Employers would routinely have access to employees’ confidential and sensitive health information which must be managed with utmost care. It is unclear whether the idea would be to add to existing legislation or to enact other separate legislation but some businesses might object to the additional burden of responsibility.

His proposal raises many pertinent questions: Is this just a “by stealth” privatisation of the NHS? Would this provision by the employer be at its own cost, or could it be passed on to the employee? Would it be mandatory for an employee to avail his or herself of the employer’s facilities and what penalty would ensue if he or she failed to do so? How would this affect the employer or employee’s tax position – would this be a benefit in kind or, as it would be part of a legal requirement, not treated as such? Would this obligation extend to all companies, even smaller ones, and how would at risk individuals be identified? What penalties would be put in place for employers who did not comply with the obligations and who would enforce these obligations?