The introduction of 'fit notes'

The consultation period for the introduction of the "fit note" which will replace the traditional "sick note" is under way, but what will these changes mean for your business? Solicitor Fiona Killingworth explains.


THE PROBLEM

I have heard that in 2010 the Government is planning to substitute the traditional "sick note" for a "fit note". I have an employee who is on long-term leave owing to illness but is hoping to have recovered enough by the new year to return to work in a more limited capacity. What are the ramifications of this new legislation?

THE LAW

The new "fit note" will come in during 2010 under the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010. It focuses on supporting employed patients for a more comfortable return to work and aims to simplify the process for GPs and employers.

The new scheme will enable GPs to encourage discussion between an employee and employer to facilitate an often earlier return to work for employees on long-term leave.

EXPERT ADVICE

Once "fit notes" are introduced, GPs will be able to indicate whether a patient is fit for work or not for the benefit of sick pay purposes, they can also include a "may be fit for some work" option. This amendment ultimately shifts responsibility on to the employer.

GPs will provide general details of the physical implications of the employee's condition in relation to their ability to work. The GP will potentially make suggestions of optional changes which could be made by employers to enable an easier return to work for the employee, for example, a phased return, altered hours, amended duties or workplace adaptations. Employers are not obliged to implement these changes - however, they could help to reduce the 172 million working days lost a year in Britain owing to sickness absence.

The regulations also simplify the return to work process for employers by requiring GPs to set certain dates when the patient should be able to return to the workplace. Employers will, therefore, not need to seek confirmation from a doctor that an employee is fit for work on the expiry date, or before it if the employee is happy to return and is within the advice given by the doctor.

CHECK LIST

• Be Flexible. The majority of people awaiting treatment or recovering are capable of doing some kind of work. Try to accommodate employees who are prepared to return to work by finding them a role of suited capacity. For example, employees with back pain might be able to return earlier if they are excused from bending or lifting whilst they recover.
• Training. Provide those in managerial positions with training to heighten understanding of roles and adaptations relevant to employees of reduced capacity.
• Development. Develop procedures and programmes with the help of the employee and occupational health professionals to ease the return to work, for the incapacitated employee and the rest of your workforce.
• Preparation. Be prepared to make amendments to the job role of the employee, whether this is through physical adjustments to the workplace, or flexibility with working hours.

BEWARE!

At present, these changes to be introduced in 2010 are voluntary to help employers reduce the length of long-term sickness periods and accommodate employees. However, these regulations also bear similarities to an employer's duty, under the Disability Discrimination Act 1995, to make "reasonable adjustments" to enable employees with a disability to carry out their job. Failure to adequately consider adjustments suggested by an employee's GP under the new regulations could, therefore, lead to a disability discrimination claim.

CONTACT

Fiona Killingworth
Solicitor, employment
Tel: 0870 194 7924
E-mail: fiona.killingworth@bevanbrittan.com