The New "Fit Note" - So What's Changed?
Many people with health conditions can, with some basic support from their employer, work as they recover. For some employees, returning to work can often aid their recovery and their return can also benefit the employer by reducing sickness absence.
From the 6 April 2010 doctors will be issuing “fit notes” in the place of the outdated sick notes. Under the current sick note system, doctors can only advise their patient on whether their health condition means that they should or should not work. This system gives no flexibility and leaves little or no scope to achieve an earlier return to work.
The focus of the new Statement of Fitness for Work - “Fit Note” for short - is on what the employee may be able to do at work rather than what they cannot do. The doctor has the opportunity to advise whether the employee is “not fit for work” or “may be fit for work”.
If the doctor advises that the employee may be fit for work there are tick box options to suggest common ways to help a return to work such as a phased return to work, flexible working, amended duties and/or workplace adaptations. There will also be space for the doctor to provide more information on the condition and how it may affect what the employee does.
What is the impact on employers?
Although it is a new form, many things will stay the same - the Fit Note can still be used as evidence for why an employee cannot work due to an illness or injury; the Fit Note is still not required until after the 7th calendar day of sickness; the information on the Fit Note is still advice to the employee and is not binding on the employer; the requirements of the payment of Statutory Sick Pay have not changed and the employer’s obligations under the Disability Discrimination Act 1995 (DDA) have not changed either.
When the employer receives a “may be fit for work” fit note it is not mandatory for the employer to act on the doctor’s advice. However, the employer should do (and ideally be able to evidence) the following:
- Consider all of the advice and how it would affect the job and the workplace; and
- Discuss the advice on the fit note and the options available with the employee.
If the employee and employer agree that it is possible to return to work, then they should agree a return date and any workplace adaptations. In relation to any adaptations, the employer may need to seek advice from an occupational health advisor. The employer should also carry out a revised risk assessment if they are making any adaptations or if the employee’s duties change to ensure that these do not introduce new risks. It should be explained to the employee that these arrangements are only temporary. The employer should monitor the return to work and review with the employee on a specified date.
If the employer and employee agree that a return to work is notpossible thenthey should agree the next review date or a return to work date. The employer must pay sick pay as per contractual terms and/or Statutory Sick Pay rules.
If there is a disagreement the employer should suggest that the employee seeks advice from their trade union or an advice centre. The employee may raise a grievance if no agreement can be reached – there is a significant risk here under the DDA given the positive obligation to consider “reasonable adjustments”.
If there is an occupational sick pay scheme in place, it should be reviewed to check that anyone who does return part time is no less off than if they were still on sick leave (often an obstacle to a smooth, unhindered return to work). In addition, occupational sick pay schemes should make it clear that a person who is back at work on reduced duties or altered hours is no longer counted as being on sick leave for that period.
Overall the new Fit Notes should benefit both the employee and the employer. The employer will be provided with more information about the employee’s health condition and the measures it could put in place to facilitate an earlier return to work. An earlier return to work can result in savings from a reduction in sick pay to other costs incurred by sickness absence such as lost turnover, loss of skills base, re-training costs and poor staff morale. The employee is provided with the support they need to return to work and the new system will hopefully remove the challenges that an employee faces when trying to return to work after an illness or injury.