The Government hopes that the all-new fit note will increase the opportunity for employees to achieve an earlier return to work than they perhaps would have done under the sick note scheme.
The overriding aim is to encourage all parties involved to look at whether an employee could do some (or all) of their job with some support, rather than remaining signed off sick.
However, will the introduction of these fit notes create more problems than they solve?
The Government believes that recovery from illness and injury can, in many cases, be assisted by working and so, if the scheme does work well, employees will recover more quickly and businesses reap the benefits from a reduction in sickness absence.
Indeed, Labour estimates that the new regime will save the economy GB pound 240 million over the next 10 years.
That said, while the rationale behind the fit note scheme seems well intentioned, there are a number of pitfalls to be overcome. How successful the scheme will be remains to be seen.
Introduction of ‘may be fit for work’
At the moment, a doctor advises whether a patient is or is not fit for work. However, the significance of the new scheme is that, on a fit note, the options available to a GP are to say that their patient is ‘unfit for work’ or ‘may be fit for work’.
Where a patient cannot work at all due to illness or injury, the ‘unfit for work’ option functions in the same way as the current sick note. However, the new fit note means that a GP will need to consider whether their patient could possibly do some or all of their job if while away from their place of employment if some changes were made.
If the ‘may be fit for work’ option is chosen, the GP should go on to select from a non-exhaustive list of changes that they consider may assist the employee to return to work – such as a phased return, altered hours, amended duties and/or workplace adaptations – and then provide written comments about the effects of their patient’s condition (as well as more detailed comments on what could be done to help facilitate a return to work).
However, the form doesn’t require the GP to go into details about the specific activities an employee can carry out at work.
The GP should also state the period over which their advice covers (which, over the first six months of any illness or injury, can be for a maximum of three months). They will also need to say whether any reassessment of their patient’s fitness for work needs to be carried out.
What should an employer do with a ‘may be fit for work’ statement?
Where an employee presents a ‘may be fit for work’ statement, this should prompt a discussion with them about whether they could in fact return to work despite their illness or injury.
The doctor’s recommendations need to be considered carefully, not only with the employee concerned but also in the context of the business. There may well be practical reasons (or industry-specific safety guidelines or regulations) which the GP may not be aware of and which render their suggestions unworkable.
It’s recommended that employers carry out a risk assessment when considering whether or not a return to work is feasible. It may be that there are adjustments which could be made which the GP has not considered because of their limited understanding of their patient’s work or workplace.
It may also be the case that, despite the GP’s comments, an employer requires further input from them or from an occupational health provider (particularly if the employee has been off work for a long time, or if the employer is unsure how the adjustments will work on a practical basis).
If a return to work – with due adjustments – is feasible then the changes, return to work date and a date for review should be discussed and agreed with the employee. In most cases, the changes will be for a temporary period, although in some situations may be longer term.
Even though a GP has advised that the employee may be fit for work, if an employer cannot make any adjustments or adaptations to help facilitate the return to work then they’re not bound by the GP’s suggestions.
If the options are not workable then the reasons should be properly explained to the employee. In these circumstances, an employer should continue paying sick pay as usual as if the employee is ‘unfit for work’ and review the situation again as the employee visits their GP.
Having said that, it’s important to remember that nothing in this new scheme changes an employer’s obligations under the Disability Discrimination Act (DDA) 1995 to make reasonable adjustments in the workplace when the particular employee has a ‘disability’ as defined by that legislation.
Increased burden on GPs and employers
The fit note scheme inevitably places an increased burden on both GPs and employers.
For GPs under pressure to assess a patient’s health within already limited appointment slots, they will now be expected to understand their patients’ work in much more detail than before when deciding how to complete the new forms.
While in devising the new scheme it was recognised that GPs are unlikely to have sufficient knowledge about job roles, functions and occupational risks to assess the actual fitness of their patient to return to work (hence them not being required to go into detail on the specific duties their patient could do), to complete the form properly they will have to have some kind of discussion with their patient about their work.
It remains to be seen whether GPs will have the time, inclination or understanding to complete the ‘may be fit for work’ option or whether they will simply opt for the ‘unfit for work’ option instead for ease. While this will not increase the burden on employers, it will in effect defeat the objectives of the fit note scheme.
It may of course be the case that a GP doesn’t feel well placed to make an assessment about their patients’ ability to work and they may, if they feel appropriate, recommend that an occupational health assessment is required. Alternatively, in trying to be co-operative GPs could in fact give unclear or unhelpful advice in their ‘may be fit for work’ comments.
In either of these cases the employees might sufficiently fill in the gaps, but otherwise the alternative is to revert to the GP (or make a referral to occupational health) for further guidance. A busy GP practice is unlikely to respond quickly, and is likely to charge for this service (as is an occupational health advisor). In turn, this increases the administrative and financial burden on an employer.
Even without any difficulties arising from the form itself, the ‘may be fit for work’ option having been ticked by a GP will immediately place a burden on an employer who will need to meet with the employee and discuss the options with them and carry out a risk assessment.
While adjustments to facilitate a return to work are something employers with ‘disabled’ employees are used to, the new form in effect means considering the same issues for all employees in the ‘may be fit for work’ category.
Difficult employees: how to deal with them
While hopefully not commonplace, there may well be times when a GP makes a ‘may be fit for work’ statement which can be supported to some extent by an employer, but with which the employee disagrees.
For example, a GP may recommend shorter hours which an employer can accommodate with a pro-rata entitlement to pay. However, this could be resisted by an employee who would be financially better off being off sick completely and in receipt of full pay.
The shortfalls could be made up with holiday or, if short term, an employer may agree to fund the difference. Any dispute may be easily resolved with increased communication between employee and employer and/or some further enquiries with the GP or occupational health specialist to find a mutually beneficial solution.
If not, an employer may be left with their only option being to consider taking disciplinary action against their employee if there’s a dispute over their attendance at work.
The new scheme leaves a lot of unanswered questions about some of these practicalities, and there’s clearly the potential for an increase in workplace disputes until such time as there’s more guidance to help employers manage the day-to-day issues of the new scheme.
What if an employer gets it wrong?
There’s no specific penalty imposed on an employer for failing to implement the recommendation made by a GP, but employers need to watch out for:
DDA claims
Employers have a duty to make reasonable adjustments to accommodate disabled employees in the workplace. If recommendations are ignored where the DDA might apply then litigation may ensue. There’s no cap on the limit of compensation that can be awarded where discrimination is found.
Grievances
Employees may become aggrieved about the way in which a ‘may be fit for work’ statement is handled. When a grievance is raised, an employer should follow the ACAS Code of Practice. Any failure to do so, coupled with a successful tribunal claim, will see an increase in compensation by 25%.
Breaching trust and confidence
If a ‘may be fit for work’ situation – or a subsequent grievance – is handled poorly by an employer, an employee may seek to resign. They can claim that trust and confidence has been lost, and that they’ve been constructively dismissed.
While often difficult claims for employees to succeed with, the time, cost and risk of litigation is better avoided.
Top tips for employers
Meet with employees promptly when receiving a ‘may be fit for work statement’ and have meaningful discussions with them.
Bearing in mind your obligations under the DDA, ensure that if you’re rejecting a recommended adjustment then you are doing so having considered this properly and can justify why it’s not feasible.
If you don’t have an occupational health advisor on board already, consider your options for referrals to occupational health advisors which may increase under the new scheme.
Consider whether or not your employment contracts and sickness absence policy need updating to reflect the fit note system, and the ways in which you deal with the ‘may be fit for work’ option.
Alison Graham is senior staff solicitor in the employment team at Veale Wasbrough Vizards
