Fit Notes - In the spotlight

Published: 17th February 2010

6 April 2010 will herald a new regime in managing employee sickness absence with the introduction of the "Statement of Fitness for Work" or "Fit Note" as it is more commonly called. Fit notes will replace the current incapacity certificates which have been around in their present format since the 1920s in an attempt to reduce the incidence and costs of workplace absence. As the name suggests, the new regime focuses on encouraging employers and employees to work towards an early return to work in appropriate circumstances.

The New Regime

Under the new regime GPs will have two options to choose from when assessing their patients. These are either:

"You are not fit for work"; or
"You may be fit for work taking into account the following advice".

Where an employee is certified as not fit for work, the GP will state the period of incapacity and whether the employee will need to be assessed again at the end of that period. This means that provided the employee is fit to return to work at the end of that period, he or she will not need to return to their GP before returning to work.

Where an employee is assessed as being fit for some work, the GP is required to specify whether the employee would be assisted by:

A phased return to work;
Amended duties;
Altered hours; or
Workplace adaptations.

There is additional space on the form for the GP to make any specific comments about the employee's health, the effects of this or the adjustment suggested. The GP is also required to give an indication of how long the adjustment will need to remain in place.

A sample of the new Fit Note is available here: http://www.dwp.gov.uk/docs/med3-fitnote-sample.pdf

The other changes the Regulations introduce are:

In the first six months of a health condition, the maximum period a GP can issue a fit note for is 3 months (reduced from 6 months);
Only GPs can issue fit notes although it is proposed that this will be extended to other healthcare professionals in the future;
The certificates will be in electronic format (usually printed) which should assist with legibility issues often associated with the current sick notes.

Anticipated Issues

As with any new regime, the fit note system will take some time to develop and for employers, employees and GPs to familiarise themselves with it. Below are some of the issues we anticipate will arise.

Do I have to rely on the GP's assessment of the workplace?

GPs will have limited knowledge of the employee's workplace and what the job entails. The recommendations are not therefore intended to be prescriptive but are intended to facilitate discussions between employee and employer about what the employee can do and what changes the employer can make to enable him or her to return to work.

Can I still use occupational health advisers?

The new regime is not intended to replace the role of occupational health advisers and it may be that their input is helpful in considering the GP's recommendations and what adjustments can be made to assist the employee to return to work. Where there is a dispute about the assessment, it will be helpful to seek advice from occupational health advisers and their guidance may be essential especially where they have knowledge of the workplace and the roles undertaken.

Will I be obliged to comply with the GP's recommendations?

Employers are not obliged to comply with a GP's recommendations. However, if the employee is disabled, the employer is under an obligation to make reasonable adjustments. Remember that the definition of a disabled person under the Disability Discrimination Act 1995 ("DDA") is much wider than commonly perceived and most employees who suffer from a long term condition will be covered.

It is likely that the recommendations set out on the fit note will be good evidence of a reasonable adjustment and disgruntled employees will certainly seek to place significance on the recommendations if a dispute arises about their ability to return to work. Accordingly, employers who fail to adhere with recommendations put forward by a disabled employee's GP may therefore be in breach of their obligations under the DDA. This can be a complex area and employers are advised to take specific advice if they are concerned an employee is or may be disabled and they may have obligations under the DDA.

What if I disagree with the GP's assessment?

The GP's assessment is not binding and it may be that in discussions with the employee it appears he or she is not ready to return to work or that you cannot make the adjustments required (subject to the above). In those circumstances, the employee is treated as being unfit for work and the fit note serves as evidence of the unfitness for SSP purposes.

If an employee returns to work on reduced hours, what should I pay?

This will largely depend on what the contract of employment or sickness absence policy states. Where they are silent on this, it is for the employer to agree with the employee what they will be paid if they return to work on a phased basis or on altered hours. Unless an employee is entitled to full pay if absent from work, it may be prudent to pay the employee pro rata to the hours worked or at least to limit the period for which full pay is paid for reduced hours, otherwise there will be very little incentive for the employee to return to full hours.

Do I need to carry out a risk assessment before the employee returns to work?

The new regime does not affect employers' health and safety obligations. The employer should therefore carry out a risk assessment to ensure there is minimal risk to the employee and their colleagues.

Will my insurance be affected if an employee, who would otherwise be unfit for work, returns as adjustments can be made?

In their response to the consultation paper on the new regime, the Government assures employers that the Association of British Insurers have confirmed there is no requirement for a "fit for work" certificate. However, prudent employers may wish to check with their own insurers to ensure that there are no implications for their cover when such an employee returns to work.

Can I discipline an employee if their GP says they are fit for work subject to adjustments but they refuse to return?

The fit note will be good evidence that the employee is able to return to work. However, employees are not obliged to engage in a phased return, amended duties or adjusted hours. Where all of the recommended adjustments have been made and the employee still refuses to return, an employer could consider commencing disciplinary action. However, this should be a last resort and employers must ensure that they discuss the situation with the employee and investigate any concerns raised before disciplinary action is taken. If disciplinary action is to be taken, employers must also ensure that they comply with the ACAS code of practice on disciplinary and grievance procedures.

We anticipate that this will be an area where it is likely there will be disputes between employers and employees and we will have to wait and see how the first cases are determined.

Will they help?

The new system of fit notes is a marked move away from the current regime. Care should therefore be taken before decisions are made and employers who have disabled employees are advised to take specific advice about their obligations under the DDA.

It is hoped that the Government's view that fit notes will assist in reducing sickness absence both in terms of frequency and length will be correct but it remains a concern that fit notes will increase the burden on employers when dealing with absence and particularly absence for stress related reasons. One of the issues we often come across is where a medical report or similar states that the employee would be able to return to work if the workplace or management issues were resolved. Practically this can pose immense difficulties for an organisation especially where there is a related grievance. Such issues will inevitably be more common as GPs strive to suggest adjustments to enable their patients to return to work.

It therefore remains essential for employers to have in place detailed sickness policies which clearly set out expectations, entitlements and when action may be taken. Employers will need to ensure that line managers who invariably have the day to day responsibility for managing sickness absence are trained in working under the new regime as well as implementing any sickness policy in place.

If this raises any issues for your organisation, please do speak to your usual contact in the Mace & Jones employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.

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