The Fit Note Challenge – managing employees who ‘hide’ behind a GP’s sign off

Posted by Amanda Okill

Senior Associate

Make use of the new, free Fit for Work scheme

Employment lawyers know, one area we cannot challenge is the decision of an employee’s GP, whose diagnosis, as set out in a Fit Note whether it be ‘stress’,  ‘general malaise’ or ‘low mood’ (examples of which we have seen) can leave employers without a member of staff for weeks at a time.

Recently I have been asked to advise a number of small business owners, effectively blackmailed by this menacing option. When advancing a reasonable management instruction, attempting to deal with genuine cases of poor performance, or confronting an employee on unacceptable behaviour, clients have reported the sudden disappearance of their employee and swift arrival of a GP’s note.

In April 2010 the statement of fitness for work, or ‘fit note’, was introduced on Dame Carol Black’s recommendation.  It replaced the former ‘sick note’ used by GPs and its main difference was to provide a section for the GP to complete indicating that an employee "may be fit for work" (in addition to the "not fit for work" option). Where the “may be fit” option is selected, there are tick boxes for the doctor to suggest common ways to facilitate a return to work: a phased return; altered hours; amended duties; and/or workplace adaptations.

If the idea was to involve GPs in an effort to assist in facilitating a return to the workplace, the fit note has fallen flat*.  As an employment solicitor advising employers on managing sickness absence, I have rarely seen it used in this way and never against the employee’s wishes. In any event, sickness absence levels remain high and managing sickness is a bugbear for employers. Working days lost to sickness in the UK remain amongst the highest in Europe.

So serious is the issue that the former coalition government commissioned Dame Carole Black and David Frost to carry out a review of workplace absences. Their findings and recommendations were published in November 2011 Health at Workan Independent Review of Sickness Absence.  The introduction of a state funded assessment for employees who were off for four weeks or more was put forward along with other suggestions, most of which the government accepted.

And so it was that the foundations of Fit for Work were born. Throughout the course of 2015 the Fit for Work Scheme has and continues to be rolled out across the UK and is now up and running in most areas.

Delivered in England and Wales by Health Management Ltd and in Scotland by the Scottish government via NHS Scotland there are two aspects to the service:

  • Free health  and work  advice through its website and telephone advice line to help with absence prevention.
  • Free referral  for an occupational health assessment for employees who have reached, or whose GP expects them to reach, four weeks of sickness absence.

The website can be accessed at http://fitforwork.org/

The service is free and can be used by all employers regardless of size or resources. Referrals can be made by the employer or the employee after 4 weeks of absence.

In addition, GPs may refer patients who have been off work for four weeks or longer.

However, there is no indication that GPs wish to be actively involved and if experience is anything to go by, this cannot be expected of them.  A recent report carried out by Cigna show the majority, 61% of GPs, were unaware of its existence.** Of those who were aware, over a third have not yet made up their minds about using it.  Of the GPs who are aware but do not plan to use the service, the main reason is that they believe it is the employer’s responsibility to address the problem of workplace absence.

This begs the question as to how employers can effectively manage sickness absence without the support of GPs whose ‘sign off’ seems to actively work against businesses?  Yet, how realistic is it to rely on them? Is it the role of a GP to regulate the behaviour of the UK labour market?

So what can be done?

Employers have to be proactive in managing this issue, irrespective of how unpalatable it is.

On a positive note, the fact an employee is signed off work by a GP, should not be a barrier to communication. There is no rule in employment law statutes or otherwise which prevents an employer from communicating with a sick employee.  The chances are that legal advice will be required in managing the issue. However, the most critical points in managing absence can be summarised as follows:-

  •  Keep in contact by phone, email and in writing. In cases of genuine illness do be sensitive and allow the employee time to recover.  Be careful not to bombard them with messages – to do so could be a form of bullying/harassment.  However, reasonable contact should be encouraged.
  • If a meeting with an employee is needed, say investigatory, disciplinary etc, it can still be arranged even if the employee is signed off with a sick note. However, in these cases, the employer must  tread carefully. Firstly look to hold it at a neutral venue. If the employee refuses to attend, refer them to Occupational Health, and seek an opinion as to the employee’s ability to attend a meeting (accepting they are not able to attend work).
  • On the latter point, seek the opinion from an independent Occupational Health practitioner, not the employee’s GP. The GP will, in most cases, not be inclined to assist the employer and could be slow in coming forward with any information.
  • GPs can be asked to release the employee’s medical notes. These notes are useful in cases where perhaps there is a suspicion of an underlying condition which may amount to a disability.  If the employee is disabled, reasonable adjustments need to be considered. The employee’s consent is, however, required. The notes can then be passed on to the Occupational Health practitioner, either privately instructed, or via the Fit for Work scheme.
  • In some cases, provided the employee is forewarned, an investigatory meeting can take place in their absence. This may be essential where there are serious allegations, including safeguarding concerns which have arisen in schools or care homes and the employer, with its obligations to other statutory authorities, cannot wait around for weeks on end for the employee to return to the workplace.
  • If the employer is struggling financially, they should make use of the new Fit for Work scheme. It is free.
  • If the employee refuses to co-operate by turning down appointments, the refusal can be addressed as a disciplinary matter, for failure to follow a reasonable instruction. We would recommend that the employer updates its sickness policy to address this explicitly.

Finally, it is worth pointing out that Employment Tribunals take into account the size and administrative resources of an employer when assessing the fairness of a decision to terminate employment. The ongoing lack of co-operation by an employee and deliberate attempts to sabotage any constructive meeting with the  GPs ‘sign-off’ can be managed. If the employee fails to return to work within a reasonable time, even in cases of genuine illness, employment can be brought to an end under a capability (ill health) procedure.

So in conclusion, while repeat GP notes can be frustrating, action can be taken and sickness should never be seen as a barrier to communication with, and management of, the employee.

 

Footnotes

*A study of over 900 GPs, patients and employers which was commissioned by the Institution of Occupational Safety and Health (IOSH) and conducted by Nottingham University has found that fit notes are not being used to their full potential to manage sickness. WSB: Improved fit note training required for employers, 7 August 2015.

**Cigna & YouGov ‘DWP Fit for Work awareness research’,’ March 2015  (1,002 GP responses, 689 employer responses)

 


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