Spring 2010

Legal Update

Fit Notes - helping reduce employee sickness absence for employers?

From 6th April 2010, the Statement of Fitness for Work (“fit notes”) will be the new medical statements issued by all GPs in respect of sickness absence and Statutory Sick Pay for employees.  The new fit notes will introduce a number of changes. 

It is hoped that the changes will cut the cost of sick leave for employers, whilst providing employees with the support they need to return to work sooner after a period of illness.  According to the Department for Work and Pensions (“DWP”), it is expected to benefit the British economy by an estimated £240 million over the next ten years. 

Under the old sick note regime, GPs could only advise on whether an employee should or should not work.  Under the new fit note regime, GPs will now be able to advise on whether an employee is unfit for work or may be fit for work, subject to adjustments.

As with the old sick note regime, the fit note is not required until after the seventh calendar day of sickness.  You should also be aware, that the requirements for the payment of Statutory Sick Pay remain the same.  As do an employer’s obligations under the Disability Discrimination Act, which prohibits the discrimination of disabled employees in the workplace.

The main aim of the fit note is to provide greater flexibility for managing sickness absence.  The fit notes will enable GPs to provide a more detailed view of an employee’s condition and provide suggestions on how an employee could be accommodated in the work place. 

For example this could include:-

• a phased return to work;
• altered hours;
• amended duties; and/or
• workplace adjustments.

The fit note will also give an indication of the possible time period to which the above recommendations may be required for.  It is worth noting that the GP advice in the fit note is not binding and it is up to the employer how they act on the advice.

Upon receipt of a fit note, an employer should seek to discuss the statement with the employee.  The employer should consider the advice on the fit note and discuss possible options with the employee, for example amended duties on the employee’s return.  A return to work date can then be agreed.  Any adjustments made should be regularly reviewed to see how effective they are and whether any further changes are required.  If the adjustments are not possible or reasonable then this should be explained to the employee who will be required to take sick leave until their condition improves. 

Employers must be cautious in this area.  Not only is sick leave a sensitive issue, but the employee’s condition may also be classified as a “disability” under the Disability Discrimination Act.  If so, then the employer must comply with their duties and obligations under the Disability Discrimination Act.  A failure to do so will leave the employer open to a claim being made against them in the Employment Tribunal.  For this reason employers ought to be aware of the interrelationship between sick leave and disability and seek advice where they are uncertain whether the Disability Discrimination Act applies. 

It is hoped that the new changes will reduce the number of employees on long-term sick leave.  By making practical adjustments, to help employees back into the work place, an employer could make savings in sick pay and the cost incurred from loss of skills to the business.  With the necessary support, productive employees are likely to increase output, which in turn should increase profits. 

However, the suggestions made by the GP may well lead to disputes between employers and employees about what constitutes suitable work following a period of sickness absence. The new guidance states that if an employer does not understand the advice on the fit note, they should discuss it with the employee  If they are unable to resolve the matter, the employer can then contact the GP directly.  This could potentially have costs implications and practicalities, as it is usually very difficult to get busy GP’s to respond to queries and they are likely to charge for any response.

The Employment Lawyers Association (“ELA”) group, which drafted a response to the DWP paper, said GPs would need to make decisions about partial fitness to return to work without full knowledge of what an employee's job entails.  ELA also questioned the absence of distinctions between employees on long-term or short-term sick leave and asked whether employers would really be expected to incur the expense of workplace changes for an employee with a short-term illness.

Other concerns raised by the group included:-

• employers feeling forced to accept an early return to work;
• the impact of the costs and resources involved for different employers (large companies may have in-house occupational health teams and be able to afford the cost of making workplace changes for a partially fit employee returning to work, where smaller companies could struggle); and
• the potential for disputes to arise from the difference between employers' responses to fit note requirements and their obligations to make workplace adjustments under current disability discrimination laws.

Only time will tell how effective these changes really are on reducing long-term sickness absence. 

It remains essential for employers to have in place detailed sickness policies which clearly set out entitlements and when action may be taken.  Employers will need to ensure that line managers who have the day to day responsibility for managing sickness absence understand the new regime as well as being able to implement any sickness policy in place.

Employers should also consider whether their sickness absence policy requires amending in light of the above. 

The Government has stated that it will review and evaluate the new system in 2012-2013.  However, this may not happen depending on the results of the forthcoming General Election.

Sarah Glockler is a Partner specialising in employment law at Abrahams Dresden LLP (www.ad-solicitors.co.uk), a practice based in the City of London that provides a high quality legal service at competitive rates.  If you would like to discuss any of the issues raised in this article or would like to know more about our services, please contact Sarah on 020 7251 3663 or e-mail sarah.glockler@ad-solicitors.co.uk

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