Will the new "Fit Notes" provide solutions to sickness absence or cause more headaches to employers?
Alexandra Besnard, Solicitor at Sharon Langridge Employment
Lawyers discusses the impact of the new "Fit Note".
As most of you are probably aware since the 6 April 2010 the
Social Security (Medical Evidence) and the Statutory Sick Pay
(Medical Evidence) Amendment (Regulations 2010) replaced the old
doctor's medical certificate (Med3) by the new 'Statement of
Fitness to Work', colloquially referred to as a 'Fit Note'. The
Government's intention was to prevent or minimise long term
sickness. In the new system, GPs are encouraged to help ascertain
whether employees can return to work in some capacity and what
assistance an employer should consider to enable this early return
to work. The new regime is supposed to benefit employees by
avoiding loss of pay, isolation and loss of skills, and benefit
employers as well as the wider economy, as fewer benefits will need
to be paid out. In this article, we will consider the legal
implications of the changes.
It is clear that the new Fit Note system has the potential to
promote good practice in managing sickness absence and encourages
dialogue with the employee. It however also poses some concerns.
For example, how do you go about asking someone to return to work
when they are not 100% fit? And what are your responsibilities once
you receive a Fit Note which recommends making adjustments to your
employee's duties or working patterns?
There are also some fears that the new system will be burdensome
for smaller businesses who may not have the infrastructure or
resources to accommodate employees' phased return or return on
lighter duties.
The scheme makes clear, however, that the GP's recommendations
are not binding on the employer. If the recommendations cannot be
accommodated then the Fit Note can simply be treated as a 'sick
note'. It is nevertheless important to consider the proposed
adjustments, as failure to do so may have legal consequences. These
could be avoided by simply having a dialogue with the employee
about the changes and seeking advice from an HR advisor,
occupational health specialist or employment lawyer.
So, what should you do if a GP makes a
recommendation in the Fit Note?
The first and most important step is to discuss the GP's advice
with the employee, before discounting it as impractical or
impossible to implement. You should also be wary of following the
advice in a tick box fashion without any discussion with the
employee. The GP may not necessarily understand the demands of your
industry or how your organisation works, so your inside knowledge
will carry weight when deciding whether the changes can be
accommodated. Advice for an employee working in a large firm may be
the same as for someone in a small organisation - but
implementation of the advice is likely to vary and could be more
difficult for a smaller employer.
Before making any decision, consider also how any changes would
affect other employees and be prepared to carry out new risk
assessments.
If you don't know where to start with the GP's recommendations,
it may be useful to get advice from an Occupational Health advisor.
For those who do not have access to occupational health, the
Government has created advice lines which can be contacted if you
require support. Their details can be found at the end of this
article.
It is also important to note that you cannot force an employee
to return to work if he or she feels unable to do so. This may
allow you to invoke your disciplinary procedure if the employee is
acting unreasonably, but if you are unsure, seek advice before
making the decision.
Potential legal implications of Fit Notes
Personal injury claims
In cases involving early return to work, you should ensure that
the changes have been properly implemented and regularly monitor
the employee's progress. If it becomes apparent that the employee
is not coping and the condition is getting worse, then it would be
advisable to obtain further advice from the GP or occupational
health. If in doubt, send the employee home on medical suspension
pending getting advice. Otherwise, there is a risk that the
condition could deteriorate and the Fit Note could then used as
evidence that the injury was foreseeable, thereby helping the
employee establish liability for a personal injury claim.
The same caution should be applied when the employee returns to
work on full duties at the expiry of the Fit Note. The best advice
would be to keep the dialogue with the employee open and maintain
good records of these discussions to ensure that if a dispute later
arises, information can be supplied to defend a potential
claim.
The implications of disability
legislation
The Equality Act 2010 is set to replace the Disability
Discrimination Act 1995, though the key principles are largely the
same. These rules only apply if the employee comes within the Act's
definition of 'disabled'. If so, then the employer is under a duty
to consider and make reasonable adjustments to the job or the
working environment, if the employee's disability is causing him or
her to suffer a substantial disadvantage.
Following the advice given in the doctor's Fit Note will
undoubtedly show that some steps have been taken to make reasonable
adjustments, but it does not automatically discharge you of your
duty under the legislation, as further or different adjustments may
be appropriate. That said, following the advice in the Fit Note is
certainly good evidence that reasonable adjustments have been
made.
The other side of the coin is that a failure to make the
recommended adjustments could provide evidence that you have failed
to abide by your duty towards a disabled employee.
Potential constructive dismissal claims
There are concerns that an employer's failure to put in place the
recommendations made in the Fit Note would amount to a breach of
its duty of trust and confidence, thereby enabling an employee to
resign and claim unfair constructive dismissal.
This risk may however be minimal, as claims for constructive
unfair dismissal are notoriously difficult to win in a Tribunal
because the employee will have to establish that the employer's
conduct was so serious that it irretrievably broke the
relationship. It is therefore likely that it will require more than
a failure to implement changes recommended in the Fit Note.
The impact of Fit Notes on capability
dismissals
Dismissal for capability on grounds of ill health is a potentially
fair reason for dismissal as long as you are acting reasonably when
making the decision. It will therefore be necessary to consider the
recommendations made in the Fit Note before considering dismissal,
and seek advice from an Occupational Health Advisor or specialist
if the recommendation from the GP is not sufficient.
In conclusion, it is difficult to see whether the Fit Note will
make much difference and have any effect on reducing sickness
absence or improving efficiency - but it might be a step in the
right direction if handled properly. While the system may not be
perfect it will certainly enable employers and employees to
maintain an important dialogue during what is usually a difficult
time.
The system does not provide any assistance or solution for what
may be a more critical problem, which is short recurring episodes
of sickness. There is however nothing stopping you from tackling
these issues under the Capability Procedure or the Disciplinary
Procedure if a pattern arises.
As ever, if you are unsure of how to proceed, seeking advice
from an HR specialist or employment lawyer may save you a lot of
trouble in the long run.
Alexandra Besnard, Solicitor
Sharon Langridge Employment Lawyers
www.sharonlangridge.co.uk
Occupational advice available: