Introducing 'Fit Notes'
As most of you are probably
aware since the 6 April 2010 the Social Security (Medical Evidence)
and the Statutory Sick Pay (Medical Evidence) Amendment
(Regulations 2010) replaced the old doctor's medical certificate
(Med3) by the new 'Statement of Fitness to Work', colloquially
referred to as a 'Fit Note'. The Government's intention was to
prevent or minimise long term sickness. In the new system, GPs are
encouraged to help ascertain whether employees can return to work
in some capacity and what assistance an employer should consider to
enable this early return to work. The new regime is supposed to
benefit employees by avoiding loss of pay, isolation and loss of
skills, and benefit employers as well as the wider economy, as
fewer benefits will need to be paid out. In this article, we will
consider the legal implications of the changes.
It is clear that the new Fit Note
system has the potential to promote good practice in managing
sickness absence and encourages dialogue with the employee. It
however also poses some concerns. For example, how do you go about
asking someone to return to work when they are not 100% fit? And
what are your responsibilities once you receive a Fit Note which
recommends making adjustments to your employee's duties or working
patterns?
There are also some fears that the new
system will be burdensome for smaller businesses who may not have
the infrastructure or resources to accommodate employees' phased
return or return on lighter duties.
The scheme makes clear, however, that
the GP's recommendations are not binding on the employer. If the
recommendations cannot be accommodated then the Fit Note can simply
be treated as a 'sick note'. It is nevertheless important to
consider the proposed adjustments, as failure to do so may have
legal consequences. These could be avoided by simply having a
dialogue with the employee about the changes and seeking advice
from an HR advisor, occupational health specialist or employment
lawyer.
So, what should you do if a GP
makes a recommendation in the Fit Note?
The first and most important step is
to discuss the GP's advice with the employee, before discounting it
as impractical or impossible to implement. You should also be wary
of following the advice in a tick box fashion without any
discussion with the employee. The GP may not necessarily understand
the demands of your industry or how your organisation works, so
your inside knowledge will carry weight when deciding whether the
changes can be accommodated. Advice for an employee working in a
large firm may be the same as for someone in a small organisation -
but implementation of the advice is likely to vary and could be
more difficult for a smaller employer.
Before making any decision, consider
also how any changes would affect other employees and be prepared
to carry out new risk assessments.
If you don't know where to start with
the GP's recommendations, it may be useful to get advice from an
Occupational Health advisor. For those who do not have access to
occupational health, the Government has created advice lines which
can be contacted if you require support. Their details can be found
at the end of this article.
It is also important to note that you
cannot force an employee to return to work if he or she feels
unable to do so. This may allow you to invoke your disciplinary
procedure if the employee is acting unreasonably, but if you are
unsure, seek advice before making the decision.
Potential legal implications
of Fit Notes
Personal injury
claims
In cases involving early return to
work, you should ensure that the changes have been properly
implemented and regularly monitor the employee's progress. If it
becomes apparent that the employee is not coping and the condition
is getting worse, then it would be advisable to obtain further
advice from the GP or occupational health. If in doubt, send the
employee home on medical suspension pending getting advice.
Otherwise, there is a risk that the condition could deteriorate and
the Fit Note could then used as evidence that the injury was
foreseeable, thereby helping the employee establish liability for a
personal injury claim.
The same caution should be applied
when the employee returns to work on full duties at the expiry of
the Fit Note. The best advice would be to keep the dialogue with
the employee open and maintain good records of these discussions to
ensure that if a dispute later arises, information can be supplied
to defend a potential claim.
The implications of disability
legislation
The Equality Act 2010 is set to
replace the Disability Discrimination Act 1995, though the key
principles are largely the same. These rules only apply if the
employee comes within the Act's definition of 'disabled'. If so,
then the employer is under a duty to consider and make reasonable
adjustments to the job or the working environment, if the
employee's disability is causing him or her to suffer a substantial
disadvantage.
Following the advice given in the
doctor's Fit Note will undoubtedly show that some steps have been
taken to make reasonable adjustments, but it does not automatically
discharge you of your duty under the legislation, as further or
different adjustments may be appropriate. That said, following the
advice in the Fit Note is certainly good evidence that reasonable
adjustments have been made.
The other side of the coin is that a
failure to make the recommended adjustments could provide evidence
that you have failed to abide by your duty towards a disabled
employee.
Potential constructive dismissal
claims
There are concerns that an employer's
failure to put in place the recommendations made in the Fit Note
would amount to a breach of its duty of trust and confidence,
thereby enabling an employee to resign and claim unfair
constructive dismissal.
This risk may however be minimal, as
claims for constructive unfair dismissal are notoriously difficult
to win in a Tribunal because the employee will have to establish
that the employer's conduct was so serious that it irretrievably
broke the relationship. It is therefore likely that it will require
more than a failure to implement changes recommended in the Fit
Note.
The impact of Fit Notes on
capability dismissals
Dismissal for capability on grounds of
ill health is a potentially fair reason for dismissal as long as
you are acting reasonably when making the decision. It will
therefore be necessary to consider the recommendations made in the
Fit Note before considering dismissal, and seek advice from an
Occupational Health Advisor or specialist if the recommendation
from the GP is not sufficient.
In conclusion, it is difficult to see
whether the Fit Note will make much difference and have any effect
on reducing sickness absence or improving efficiency - but it might
be a step in the right direction if handled properly. While the
system may not be perfect it will certainly enable employers and
employees to maintain an important dialogue during what is usually
a difficult time.
The system does not provide any
assistance or solution for what may be a more critical problem,
which is short recurring episodes of sickness. There is however
nothing stopping you from tackling these issues under the
Capability Procedure or the Disciplinary Procedure if a pattern
arises.
As ever, if you are unsure of how to
proceed, seeking advice from an HR specialist or employment lawyer
may save you a lot of trouble in the long run.
Alexandra Besnard,
Solicitor
Sharon Langridge Employment
Lawyers
http://www.sharonlangridge.co.uk/
Occupational Health Advice
available:
- If you are based in England and have less than 249 employees,
contact Health for Work Telephone No: 0800 077 8844
http://www.health4work.nhs.uk/
- If your business is based in Scotland, contact Healthy Working
Lives
Telephone No: 0800 019 2211
http://www.healthyworkinglives.com/
- If you are based in Wales, contact Health at Work
Telephone No: 0800 107 0900
Website address: http://www.healthyworkingwales.com/