Fit Notes – 6 April 2010

‘Not fit’ or ‘may be fit’? – that is the question

There is a widely held belief that if you are not 100% fit, you should not be in work, or indeed that work may hinder recovery.  On the contrary, isolation brought on by absence from work can lead to stress, anxiety and depression.  The thinking behind the new Fit Note is to focus on what employees can do, rather than what they cannot.  The new Fit Note could potentially benefit not just individuals and their employers but the economy as a whole.  Work related ill health costs Britain more than £100 billion a year.
 

The Fit Note, to be issued by GPs from 6 April 2010 onwards, is a medical certificate which records whether an employee is ‘not fit for work’ or ‘may be fit for work taking account of the following advice’.  If the GP selects the ‘may be fit’ option he/she will be required to describe the effects of the employee’s condition, with the option of setting out one of four possible common adjustments which an employer could introduce to assist a return to work.  These are: (i) a phased return to work; (ii) amended duties (iii) altered hours; or (iv) workplace adaptation.  GPs will not have to give details about exactly what an employee can do on return to work because the Government recognises that it is the employer, in consultation with the employee, who is best placed to decide whether they can accommodate any changes to facilitate a return to work. 

A reform which encourages earlier intervention in sickness management has to be a good thing, however the Fit Note is not without its difficulties.

Problems may arise for employers if a GP’s recommendation is unrealistic or very expensive to implement and whilst an employer is not bound to follow any recommendations made by the GP in a Fit Note, tribunals are guaranteed to look at the employer’s response to a Fit Note to test the strength of a capability reason and the fairness of a dismissal process.  Failure to consider and act on a GP’s recommendation could result in various claims, including constructive dismissal or disability discrimination.  It also raises the question of whether the concept of reasonable adjustments for non-disabled employees has been brought in by the back door.

It is clear that the outcomes following implementation of the Fit Note regime will need monitoring, and the Government will be publishing an evaluation of the new medical statement in 2012/13.

For further information contact Melissa Edmond, Employment Law Solicitor.