The Government has announced that its new fit note’ system (the Statement of Fitness for Work’) will be up and running from 6 April this year. Fit notes are set to replace sick notes i.e. medical certificates. It appears that fit notes are coming despite much speculation that they would be quietly dropped. The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 are intended to come into force on 6 April 2010 despite concerns that this will not allow time for stakeholders such as employers and doctors to familiarise themselves with the new ‘fit notes’. Doctors will be able to say a person ‘may be fit for some work now’ rather than that they are not ready to resume normal work. The new draft form is attached to this newsletter for your information. Under the new system:
The statement will contain a short list of frequently recommended changes that could be made to an employee’s work environment or job role to help facilitate a return to work. Where a doctor wishes to suggest something that is not on the list and considers another option is more appropriate, he or she can write in a comments box.
The doctor must provide general information to support this statement. This could include advice about changes that could be made by the employer in agreement with the employee that would assist a return to work.
There will no longer be ‘a fit for work’ option as doctors were felt not to have the appropriate knowledge about individuals’ roles and the risks involved to be able to assess this.
The ‘may be fit for some work’ option that was being considered will be replaced with ‘you may be fit for work taking account of the following advice’……. This acknowledges that it is not the doctor, but the employer, in consultation with their employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work.
The maximum duration a medical statement can be issued for will be reduced from six to three months during the first six months of a health condition.
If an employer is not able to facilitate a change or an adjustment, a revised statement is not necessary; the existing statement is evidence that an individual has a health condition preventing him or her carrying out the current role.
The Government intends that specific guidance for individuals, employers and healthcare professionals will be available shortly. There will also be a communications campaign to raise awareness of the changes. At present there is anecdotal evidence that GPs are not fully aware of the Government’s proposals and the policies behind them (namely reducing sickness absence and enabling people with health conditions to return to work as quickly as possible).
Telephone consultations with GPs and their patients will be acceptable.
There is no need for the GP to see their patient and sign them back to work at the end of the ‘statement period’ but the GP may request the individual to see him/her again to review their health and fitness.
GPs will be able to say that they recommend that an Occupational Health Assessment be considered.
A Government evaluation of the new medical statement will be published in 2012/13.
So what difference will it make?
Given that research shows that only one in 20 GPs currently follow government advice on sick leave, with employees often being signed off for far longer than the time recommended, and an enormous disparity between GPs in the amount of time signed off for the same conditions, then any changes are likely to be slow in taking effect. GPs are not trained in occupational health to make an informed assessment of the employee’s work-related capabilities. Employers are not required to follow the GP’s recommendations (subject to any obligations under the Disability Discrimination Act). It is as well to see these as permissive rather than mandatory, i.e. they are not binding.
Employers should take the initiative when it comes to managing sickness absence by having in place detailed sickness policies which clearly set out triggers for action, and for employers to follow those procedures properly.
A policy that promotes dialogue between the employer and employee, making it clear that the employer wants to try to get the employee back to work and giving support including, where appropriate, adjustments such as a phased return, will all help to get your employees to get back to work. Employers should also consider referral for an independent assessment from a specialist doctor or occupational health expert, depending on the illness concerned.
It is likely that a significant proportion of the new notes will be in the may be fit category and employers will need to work pro-actively to act on this – to the benefit of both business and employee.
It is not hard to see that the new fit notes could become areas for disagreement between employers and their employees as well as potentially important evidence in disability discrimination cases involving a failure to make reasonable adjustments. This is particularly the case where changes to the employee’s duties or workplace could be made that would help disabled employees return to work sooner.
It is also explicitly stated that where someone wishes to return to work before the end of a period identified in a sick note you do not need to wait until the end of the statement period for them to do so. What is not stated, is that you really ought to do some sort of risk assessment, before you agree to this.
Your consultant will always be pleased to help with anything from minor questions to claims that the employer is discriminating by not doing what the employee, or their GP, is requiring.
