Working with fit notes

Legal Eagle / 01 July 2010

Getting staff back to work after long term sickness absence can be tough - and that's where the Government thinks the new fit note should help. Here's how it works

For some time the venerable sick note has been seen as a bit of a blunt instrument – a binary choice between being fit to work on one hand and completely unfit on the other.

As part of the effort to reduce the £13bn bill for the UK’s 172 million annual sick days, the sick note was replaced from 6 April 2010 by a Statement of Fitness for Work, more snappily called the fit note.

 

Faced with the fit note advice, an employer will be expected to discuss options with the employee but there is no obligation to implement the suggestions

Alison Weatherhead, associate, Maclay Murray & Spens

While it is hoped that the new regime will result in more support for workers as they return to work from illness or injury, most medical professionals who issue fit notes are not occupational health experts.

The form allows the GP to indicate that the patient is ‘unfit for work’ or ‘may be fit for some working taking account of the following advice’.

If the latter, a series of tick boxes state that with an employer’s agreement, the employee may benefit from a phased return to work, altered hours and/or workplace adaptations.

GPs’ ability to provide realistic recommendations for workplace situations has been questioned not only by employers and employee representatives, but also by GPs themselves. Therefore, although space is provided for further information, employers should expect this to be very generic at best.

Faced with the fit note advice, an employer will be expected to discuss options with the employee but there is no obligation to implement the suggestions.

If changes are required, they should be made clear in writing stating how long they are to be in place.Where agreement cannot be reached, a fit note which assessed an individual as ‘may be fit for work’ should be treated as if the doctor had advised ‘not fit for work’.

If an employee wishes to return before expiry of a fit note, the employer will need to consider the risks to the employee and others in the workplace before making a decision. Is the absence low risk – a throat infection – or high risk – work-related stress?

Wrangling over the feasibility of work returns is only to be expected as the new regime beds down. Employers will need to be aware of the possibility of employment tribunal claims if the wrong approach is adopted.

For example, if an employee presents as fit for work, but an employer unreasonably refuses to allow a return, the employee could bring a claim for unlawful deduction from wages if kept on sick pay as a result.

Sickness absence policies will need to be refreshed to ensure they reflect the intentions of the new fit note scheme.  Forcing a person back to work before they are ready is not the aim of the game. Overcoming the challenges to return is. Open communication channels will be required if this is to be achieved.