A paper on the TUC approach to rehabilitation

Introduction

1. A priority for the TUC is to work in partnership with employers, government

and a wide range of other stakeholders to solve working people’s problems and enhance their opportunities. However, when an injustice has been done and we can right it, we will do whatever will work, including legal action.

2. Trade unions do not see litigation as an obstacle to rehabilitation, because despite the adversarial aspects of compensation cases, they have been one of the main drivers for interest in rehabilitation. It is worth noting though that in practice the vast majority of people, for whom rehabilitation would be useful, never lodge a claim.

3. The TUC believes that rehabilitation, while vital, it is better health and safety standards that are vital to reduce the number of people who are injured and made ill by their work every year. However, rehabilitation is vital for those people who fall through the health and safety net, and can make a contribution of its own to improving health and safety standards especially where people return to work after injury.

4. The costs of injury and illness - to the victim, their employer and society as a whole - are unsustainable. Rehabilitation is much cheaper than the alternative, and employers need help to identify those costs and benefits more clearly - and that could be a major contribution from the insurance industry.

5. Once people are committed to rehabilitation, they will quickly see that the question isn’t how much to spend, but how much we can save.

Person Centred Approach

6. The TUC has supported the concept of the 'injury cycle' in which a person- centred approach to rehabilitation, rather than looking at the injury itself, is taken and which seeks to intervene at the appropriate time with the appropriate intervention. This approach clarifies the various responsibilities for aspects of rehabilitation, and ought to be adopted more widely in addressing the policy issues behind rehabilitation.

7. TUC policy is for a legal requirement for employers to have a policy framework in place. Small firms will need help to develop these policies, and the insurance industry can help here, too. Our research shows that there are a number of factors, including a proper policy framework, which will produce better rehabilitation provision. In particular, we would emphasise the role of consultation with and involvement union representatives, for instance over drawing up the policy framework

8. The TUC believes that rehabilitation should not be restricted to those who are away from work as a result of their injury or illness. We believe that the earlier rehabilitation kicks in the better the results are likely to be. Nor should it be focused on physical illness or injury at the expense for example of people suffering from stress. Rehabilitation should focus on a range of interventions and not be restrictive. Rehabilitation should be used to ensure a proper return to work for anyone whether or not the injury or illness has been caused by work, not least so that their injury or illness does not recur.

9. Our main concern is that workers who are injured are too often left to fend for themselves in terms of seeking medical and other care, with the result that 27,000 people every year leave work altogether as a result of a workplace injury or illness.

Rehabilitation and health and safety policies

10. The TUC believes that the important issue is the development of a rehabilitation policy framework in the workplace.

11. Our preference is for that to be part of the mandatory health and safety policy, partly because of the way that will link the two issues (rather than have the rehabilitation policy in competition with or undermining the health and safety policy) and partly because it will build on an existing framework of consultation with safety reps and so on. However, we recognise the importance also of integrating rehabilitation policies with those related to disability, sickness absence and retirement. The key issue is that employers need to have a policy in place in advance rather than reacting ad hoc. TUC research shows that rehabilitation and sickness absence should not be linked with the disciplinary system. Such a requirement may require amendment to the Health and Safety at Work Act 1974.

12. The TUC’s research identified a number of factors that are proven to speed up access to rehabilitation. For example, having a policy framework in place ahead of the injury means that people know whose responsibility each step of the response should be. We also found that a no blame culture could underpin early referral to medical advisors to identify the injury/illness and appropriate responses.

Funding

13. Our view is that there is no single financial system that would underpin every form of rehabilitation. There will be times when it is appropriate for the employer to meet all the costs, especially where they are responsible for the cause of injury and illness.

14. There may also be circumstances where it is appropriate for the state to fund rehabilitation, especially through the benefits system in terms of financial support and the NHS in terms of provision. The TUC is particularly keen to ensure that there is a nationally available scheme, free at the point of use, where employees, the self-emplyed and small business can receive advice and treatment.

Unified approach to rehabilitation

15. The TUC supports the case manager concept, which TUC consultations have in the past suggested is the most appropriate way to proceed. The TUC’s explorations of the Australian system of rehabilitation suggest that case managers could be recruited from the personnel/human resources profession, although we are aware that some rehabilitation providers prefer to use medically qualified personnel (not least to deal with the reaction of other medical professionals) - although we are concerned that this might promote too medical a response to injury and illness.

16. Our view is that, whatever the professional background of case managers, their need for strong interpersonal and organisational skills are the key requirements. Counselling and advice skills would also be valuable.

17. There is a great deal that individual actors could do. But overall, trust and openness are the keys to the successful involvement of stakeholders. This is in particular underpinned by the TUC’s findings that a shift of emphasis in absence management away from disciplinary processes and towards an initial assumption that absence is genuine and that illness and injury are occupational in nature leads to good practice.

18. Consultation with unions at every stage in the process, from developing the policy framework through to operating it and representing injured workers, is vital. To carry out these functions, union reps will need training and information, as well as the time and resources from management to take an active role in the process. This too may require legislation to ensure that it happens.

19. This would be the foundation (as long as other parts of the jigsaw such as no blame approaches to sickness absence management are in place) for unions to encourage their members to take an active role in their own rehabilitation, and for unions to build rehabilitation approaches into their work on health and safety and legal compensation services. Although rehabilitation is not an alternative to compensation, it will understandably reduce compensation awards if less time off from work results.

20. The main problems seem to be a lack of a joined-up approach to rehabilitation, a lack of understanding of the costs and benefits of rehabilitation, and lack of access to rehabilitation advice and services. It is clearly the case that in some organisations there is lack of trust in employees by managers and employers which leads to disciplinary approaches to sickness absence management and that needs to be overcome.

The role of Government

21. The key role that Government could play is to be the champion of a new approach to rehabilitation, and leading by example (including as an employer itself) in joining up the various parts of Government with a role in rehabilitation and clarifying the role of the various parties to rehabilitation, particularly in relation to the NHS. Improved guidance for GPs on their role in relation to the working life of their patients would be of great benefit.

22. As well as developing a policy framework, employers would benefit from the provision of advice and guidance from the Government (probably through the HSE) and insurers, as well as unions and their own trade associations, about how best ways to address rehabilitation. They also need more access to services, which will only come if there are sufficient trained staff eg case managers, physiotherapists and other occupations allied to medicine, vocational trainers and so on.

23. The key services which need to be made available in workplaces are an early reporting system and an ability to provide work and workplace adaptations. But there is a huge range of other services that can be directly provided, contracted in or signposted. Some employers will offer the full range in-house, and others will need to use the services of outside agencies, principally the NHS.

The role of the insurance industry

24. It is often suggested that Britain does not have a no-fault compensation system, but of course we do, in Industrial Injuries Disablement Benefit. Trade unions in countries with wholly no-fault schemes, such as Australia, Canada, New Zealand and the USA (and even there, lawyers have found other ways to sue negligent parties, such as product liability cases in the USA) point to the problems of no-fault schemes, in that they generally produce lower levels of compensation overall (because the overall budget is always under pressure) and exclude large numbers of conditions recognised in tort systems (eg stress and often musculo-skeletal disorders - which are the two commonest complaints at work!) These faults are all too evident in the IIDB system, and the tort system of civil compensation provides a necessary correction.

25. It is also argued that no-fault systems based on insurance are more effective in reducing injury and illness rates because they allow for premiums to be based on performance (also possible in the tort system) and channel funds from premiums into prevention and rehabilitation. Some scepticism should be in order here because all the countries studied by Greenstreet Berman actually have worse health and safety records than Great Britain. The effects of financial incentives reported in these countries may already have been achieved in Britain - indeed they may only have these effects in economies with very poor health and safety records.

26. The main problem with tort-based compensation is the suggestion that, because there is a requirement to prove fault, the effort required to prove a compensation case (and the legal costs in particular) is disproportionate to the outcome and may deter people from claiming. All the evidence is that this is not in fact a problem - unions which provide legal services and therefore essentially remove the problem from the claimant have found that their claims are stable and much higher than for the general public, but that, with conditional fees available, the non-union public is reaching a level of claims much nearer to the trade union rate.

Litigation

27. The TUC, like others, would like EL insurance/civil litigation to provide mechanisms and incentives for preventing injuries and illness at work.

28. The TUC and others would like EL insurance/civil litigation to support the expansion of the availability and use of rehabilitation. But these are secondary to the primary function of EL insurance which is to provide guaranteed compensation.

29. It is sometimes suggested that we should not try to expand eligibility for compensation, or the level of awards, because the costs of compensation systems are passed on to the customers of the party that pays the compensation.

30. This is fatuous. Someone has to pay for injuries and illness. At the moment, it is primarily the victim, with the employer who has caused the injury meeting only a minority of the costs. Employers, who pass the costs of this compensation on to their customers, make their prices less competitive which acts as a further disincentive. The alternative is to leave victims uncompensated and poor.

The no-fault system

31. At present, the legal framework for responding to injury and illness is rather weak. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) have no real incentive behind them, with the result that they often seem to be a paper exercise.

32. The TUC has commented in the past that RIDDOR needs to be beefed up with incentives for reporting, such as fast track access to rehabilitation services or tax incentives for subsequent spending on such activities

33. It is also argued that no-fault systems based on insurance are more effective in reducing injury and illness rates because they allow for premiums to be based on performance (also possible in the tort system) and channel funds from premiums into prevention and rehabilitation.

34. Some scepticism should be in order here because all the countries studied by Greenstreet Berman actually have worse health and safety records than Great Britain. The effects of financial incentives reported in these countries may already have been achieved in Britain - indeed they may only have these effects in economies with very poor health and safety records.

35. From an insurer’s perspective, is there a business case for rehabilitation?

The insurance industry has been no worse than most other stakeholders in this area - we have all failed to put into action the principles outlined by Beveridge in his report.

36. The main problem with previous insurer views on rehabilitation (which continues to need guarding against) is the view that rehabilitation is only appropriate for catastrophic injury such as quadriplegia. In practice, the business case for rehabilitation will rely far more on dealing with RSI, back strain and stress, the main causes of occupational illness and injury.

37. The TUC is persuaded by what we have seen from the insurance industry itself that there is a business case for rehabilitation - it is vitally important that good case studies and research are made available from within the industry, because of the cognitive dissonance that often results from generic arguments about the benefits of investment in rehabilitation.

38. The claimant is generally looking for a return to a situation that is as close as possible to that which existed before the injury, together with suitable reparation for the pain and other losses suffered. A rapid return to health and restored earnings potential would probably be valued much more than securing a sizeable lump sum in compensation.

39. In practice, however, few people look to litigation as the solution to their problems after injury. Often, the decision to take a case against the employer is spurred on by the poor response of employers to the injuries sustained - a concern over future liability often means that employers do not apologise, and take inadequate steps to offer redress and assistance. The adversarial nature of compensation cases flows from this - it is not inherently adversarial.

40. This underpins most of the legal work of trade unions, and our experience is therefore that the negative role of litigation, often referred to the ABI as an obstacle to rehabilitation, is in fact the effect of lack of adequate procedures for handling injured workers. If rehabilitation systems were in place, as the injury cycle model suggests, compensation would be a part of the rehabilitation process, but would come at a fairly late stage, once it was clear how far the claimant could return to health and work.

41. It is the existence elsewhere of a robust legal system that has created the spur to better rehabilitation, and the experience of countries with no-fault compensation schemes is not that this has increased access to rehabilitation, although countries with good systems of rehabilitation do seem to move towards no-fault compensation.

42. The TUC believes that improvements can be made in the way that employer liability insurance-based compensation and the Industrial Injuries Disablement Benefit system work (as a start, the levels of compensation need to rise dramatically). However, we believe that no- fault compensation cannot be the only method of compensation available. We continue to favour a mixed system.

Funding

43. One particular reform which might be explored is the possibility of doing what the Danes have done, and change the system of funding compensation so that the costs of injury compensation are met through employer liability insurance and occupational diseases are compensated by a state funding mechanism (although in the long run, all forms of funding are derived from taxes on wages and profits).

44. However, it should be clearly understood that there are many potential implications in revising the way that employers pay for injuries and illness, not least the question of creating a two-tier health service where those injured at work receive better treatment than those who are injured elsewhere. There will be winners and losers from any reform, and the need for full debate and consultation is paramount.

45. In terms of other incentives, the TUC believes that the most effective approach would be to:

• require employers to calculate the costs of their health and safety system (including the relative costs of absence and rehabilitation), by developing a new standard for auditing based on risk management principles - this may make the choices so clear that raising the level of premiums will not be necessary;
• require employers to have a rehabilitation policy as part of their (already mandatory) health and safety policy, thus encouraging insurers to provide employers with assistance in considering the possible benefits of providing rehabilitation, perhaps through a new class of insurance;
• allow the NHS to recover the costs of treating workplace injuries and illness from employers, as they are already able to recover the costs of road traffic accident treatment.

46. The TUC believes that there needs to be a range of funding available. A centrally funded system, as indicated above, with provision through the NHS would be our ideal option, but even within that it would be likely that in practice, larger employers would self-fund and self-provide. The insurance industry could provide an enormously useful system for providing collective funding and provision, using the NHS where possible. This will be especially important for smaller firms. But it is worth noting that in the construction industry there is widespread support for a collectively funded occupational health service which could provide access to rehabilitation.

Prevention is better than cure

47. This paper makes clear that the TUC recognises the need to better integrate existing occupational health and rehabilitation provision, improve access to specialist services, and to support community based occupational health projects. However, the TUC is concerned to ensure that effective means of preventing occupational ill-health are available to all working people and their employers.

48. Over the last decade or so the Health and Safety Executive’s Employment Medical Advisory Service has been decimated, starved of resources and staff. EMAS used to be able to provide comprehensive occupational health advice particularly to small business, or those who did not have their own in-house advisory service, on workplace health hazards and the steps to take to prevent them. Such a service no longer really exists. The Health and Safety Commission’s recently published strategy ‘2010 and beyond’ does promote rehabilitation but does little to advance the need for a occupational health prevention service and relies instead on a voluntary approach by industry. History has shown that, but for a few major companies, this does not work.

49. The TUC supports calls for the proper resourcing of EMAS to drive forward occupational health in Great Britain and provide leadership to the system. Setting up alternatives to a properly funded EMAS will not be cost effective in terms of the benefits secured for the resources spent. A fully restored advisory service, such as EMAS, would be effective in providing incentive to employers to make occupational health provision and would be able to provide the necessary advice to employers, as Parliament originally intended, when it was set up under the Health and Safety at Work Act. Prevention is always better than cure.

Fact sheet (3,400 words) issued 7 Apr 2004