The Chartered Institute of Personnel and Development (CIPD) has released its 23rd annual report on Health and Wellbeing at Work 2023, supported by health plan provider Simply Health. The report is based on responses from 918 organisations with more than 6.5 million employees. 
The results are helpful for HR departments building a healthier, happier workplace, but there’s also some findings that can help reduce your risk of legal disputes. 
Why it matters 
Topics discussed in the survey ranged from mental health (a large or moderate focus for 91% of employers) to financial wellbeing (a large or moderate focus for 56% employers). ‘Provision’ was defined widely, including policies, guidance, awareness raising or line manager training. 
Some topics might be niche or just ‘nice to have’, but others are valuable benefits or can impact career prospects. The range of support offered includes access to counselling (77% organisations), free eye tests (67%) support to stop smoking (27%), on site exercise or relaxation classes (16%) and personal injury insurance (13%). 
74% of employers said their wellbeing strategy was designed to promote ‘good work’ to either a large or moderate extent - this included factors such as job design and work-life balance. 66% included personal growth, including mentoring, to a large or moderate extent. 71% of employers made changes to working patterns or environments to manage long-term absences, and 66% to manage short-term absence. 
Where wellbeing initiatives influence important decisions such as work-opportunities, time off and flexible work, it is vital that all employees are treated equally. If an employee feels they have been unfavourably treated because of a protected characteristic, you could find yourself facing a discrimination claim. If an employee feels you have breached the relationship of trust and confidence, they could resign and bring a claim for constructive dismissal
Sick leave at a 10-year high 
Employees took an average of 7.8 days of sick leave last year, the highest level in over a decade. The increase is consistent across all sectors, although public sector staff still take more sick leave than private sector staff (10.6 days and 5.8 days per employee). The CIPD suggests that employees' wellbeing is suffering from Covid, the cost-of-living crisis, and global conditions including the war. 
Managing absence can be tricky, as you need to balance the needs of your organisation and your employees. Failing to manage sick leave will cost your business in reduced productivity and increase the workload of staff who are present. (In turn, workload was the top cause of stress, itself a major cause of long-term absence in 37% of organisations.) But being harsh could leave you open to claims of unfair, wrongful or constructive dismissal, or even discrimination. 
Almost all organisations (97%) take some steps to manage absence and promote attendance. Common steps to support employees include return-to-work interviews and occupational health involvement. 
Where absences are unacceptable, 72% of employers use disciplinary or capability procedures. If an employee is no longer able to do their job due to ill health, this can be a fair reason for dismissal in certain circumstances. But you must follow the correct process, and dismissal must be a reasonable response. 
Disciplinary action may be justified where you believe the employees is being dishonest. It is important to investigate fully and follow the correct procedure otherwise any dismissal could be unfair. 
When a condition becomes a disability 
When asked about the top three causes of short-term illness (up to four weeks) in their organisation, the most common causes were minor illness (94%), injuries (45%) and mental ill health (39%). The most common causes of long-term absence (four weeks or longer) were mental ill health (63%), injuries (51%) and acute medical conditions such as stroke, heart attack and cancer (46%). 
These conditions all have the potential to be disabilities - a long-term condition which impacts on the person’s ability to carry out day-to-day activities. A condition that lasts 12 months or more is generally considered to be long term, but short-term conditions that recur over a period of more than 12 months may also be disabilities. Some conditions, including cancer, are automatically a disability, without the need to show a long-term impact. 
You must be careful handling absence that could relate to a disability as treating the employee unfavourably because of their disability could leave you open to discrimination claims. Policies that impact disproportionately on disabled people could be indirectly discriminatory. 
If an employee has a disability, you have a duty to make reasonable adjustments to help reduce the difficulty they face. Adjustments depend upon the disability but can include changes to the physical environment, provision of equipment, changing working practices or making exceptions to policies. 71% of employers are already making such changes to manage long term absences, but this leaves nearly one third who are not. 
Half of employers risk treating staff inconsistently 
The number of organisations with a standalone wellbeing strategy has increased each year, from 40% in 2018 to 53% currently. 
However, 50% still say they act ad-hoc according to need. While this offers flexibility, it also risks claims. Ad-hoc reactions rely on the judgement of the manager involved and can vary by manager or by circumstance. This leaves a risk of responding inconsistently and treating employees differently, which could lead to legal disputes. This risk is greatest for SMEs, where only 37% have a strategy and 67% act ad-hoc. 
29% found it challenging to embed effective practices across different departments or sites. Again, this suggests that some companies might lack consistency, putting them at risk of disputes. 
The risk of not having a strategy far outweighs the problems, with only 8% of employers saying that their policies weren’t flexible or compassionate enough. Rather than not having policies, this means they must be well drafted. 
It is important to offer balanced support 
Employers reported offering a wide range of wellbeing support including bereavement support, suicide prevention, support during fertility treatment and awareness of the harms of gambling. 
The report didn’t look at how employers chose what support to offer, but it makes sense that the support offered will vary depending on the needs of the workforce. However, it is important that employees don’t feel less supported due to a protected characteristic such as age, sex or disability. A policy or procedure that impacts disproportionately on one group could be discriminatory. 
The report suggests there may be some imbalance here. 
Women’s health issues have become more of a priority thanks to increased awareness. But while 15% of employers focus on menopause transition to a ‘large extent’, just 4% say the same for menstrual health. 29% of respondents plan to introduce a menopause policy, but just 19% plan to introduce a menstruation policy. When considering the support on offer: 
44% of organisations offer planned flexible working as menopause provision but only 28% do so for menstruation. 
39% offer signposting to external services for menopause, but only 22% for menstruation. 
12% offer a relaxed uniform policy during menopause, but only 8% during menstruation. 
There is an age difference in the groups likely to be affected by menstruation and menopause, and so offering more support to one group than the other could be risky. 
In comparison, men’s health issues (eg. prostate cancer) get more focus than menstrual health, but less than menopause. 32% of employers focus on men’s health to a large or moderate extent, less than the 46% who say the same for menopause, but almost double those who say the same for menstrual health (17%). 34% do not focus on health issues specific to men at all. 
Workers with parenting responsibilities are supported more often than those caring for elderly or ill relatives (20% compared to 13% respectively focus on these groups to a large extent). 23% do not provide for carers, compared to just 11% who say the same for parents. 
Worryingly, 24% say they their health and wellbeing activity does not provide any support at all for chronic health conditions or disabilities, and only 12% provide for this to a ‘large extent. 71% of employers’ strategies promote physical health to a large or moderate extent, which included gym membership (40% of employers) and programmes to include physical fitness, such as pedometer initiatives (34%). However, the Great Big Workplace Adjustments Survey, undertaken by the Business Disability Forum, suggests that such initiatives can exclude disabled employees, with 15% saying their employer had promoted initiatives that were inaccessible to them because of their disability. This doesn’t mean that you shouldn’t promote health activities, but should find ways to make them inclusive, or ensure they don’t disadvantage disabled employees. For example, if you are offering a prize or bonus as an incentive to take part, don’t pick an activity that some employees will not be able to do. 
43% of employers said one of their key challenges was a lack of skills and confidence among line managers in how to support wellbeing. Despite this, just 30% of organisations provide training for line managers on how to support people to stay at work while managing a health condition. 
This suggests many companies are at risk of mistakes. If managers aren’t confident enough in the policies to apply them properly and consistently or lack the skills to have sensitive or difficult conversations with staff, there is potential for issues to escalate into disputes. 
How can we help? 
There are many ways we can help you to reduce your risk of legal claims: 
Draft your staff handbook, including a wellbeing policy, and policies on absence management, menopause and drugs and alcohol. 
Support you through the disciplinary process to ensure any sanctions or dismissals are fair. 
Assess your practices for any risks of discrimination and help you to reduce the risks. 
Provide training for your staff on employment law, including discrimination, sick leave and disciplinary procedures. 
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