Dear Auntie

My company current requires employees to obtain a sick note from a doctor when they are unwell for over seven days in order to get sick pay.  I understand that doctor’s sick notes are going to be replaced by a “fit note” soon.  When will this happen and will I have to do anything differently in future?

Davina Fonda

Dear Davina

You are correct, as from 1 April this year, the old form medical statements (commonly referred to as doctor’s sick notes) will be replaced by a medical statement in a new format which is being branded as the “fit note”.  It is intended to encourage employees to return to work by focusing on what they can do.

The fit note regime has been brought in because, according to the government statistics, sickness absence costs the UK economy £100bn a year and it is estimated that 2.5% of working time is lost to illness annually.  The most common reasons for sickness absence are mild to moderate mental ill health, musculoskeletal and cardio-respiratory conditions.  It is thought that the effects of these conditions can often be accommodated by adjustments at work.

Certain things will remain the same.  Currently, an employee is entitled to statutory sick pay if he or she is unwell for four days in a row (including weekends and bank holidays).  However, after the seventh day of illness you can require the employee to provide a “sick note” from his or her doctor.  This will remain unchanged.  What will change is what the form looks like and the information that will be provided.

The current sick note simply states that the patient should either “refrain” or “not refrain” from work.  The new fit note will state that your employee is either “fit for work” or “may be fit for work, taking into account the following advice…”.

This is link to a sample of the new form:

If a doctor advises that an employee “may be fit for work, taking account of the following advice…” he or she has to go on to state what adaptations or adjustments may assist such a return to work.  As well as an optional remarks box there are four tick box options:

• a phased return to work
• amended duties
• altered hours
• workplace adaptations

The medical statement remains primarily advice for the employee/patient rather than a direction to the employer.  The doctor’s recommendations are not compulsory and the form states that the adjustments are only “if available” and “with your employer’s agreement”.  There is currently no sanction for ignoring the recommendations on the medical statement.

A significant difference is that there is now no statement that an employee is fit for work.  This has given rise to some concern that some employees will return to work when they are not ready.  It will remain your responsibility to carry out a risk assessment on an employee’s return to work (although the Association of British Insurers has confirmed that a doctor’s fit for work statement will not required to validate employer’s compulsory liability insurance).

The new regime has given rise to some concern amongst employers.  Some of these concerns are detailed below:

Occupational Health Expertise – The average GP appointment is around ten minutes and there is some concern that GPs do not necessarily have the requisite expertise regarding occupational health or sufficient knowledge of an employee’s role or work environment to give fully rationalised advice about what adjustments would be suitable or feasible.  There has even been a suggestion amongst some medical professional bodies that GPs will routinely add to the optional comments box the recommendation that the employee seeks occupational health advice.  This might result in you seeking the advice of an occupation health expert more frequently in future which adds to the expense of managing sickness absence generally.

Disability Discrimination Act 1995 – As you will be aware, there is a duty to make reasonable adjustments where a provision, criterion or practice applied by an employer, or the physical features of a premises occupied by an employer, places a disabled person at a substantial disadvantage in comparison with a person who is not disabled.  For those employees who do fall within the legal definition of “disabled” there is a possibility that will employees attempt to use a fit note to support a claim that employer should have made reasonable adjustments, even if an employer would argue that the recommendation on a medical statement is not appropriate.

Constructive unfair dismissal – In relation to an employee who does not fall within the definition of disabled, if an employer does not or cannot follow the recommendations in a fit note, he or she might attempt to claim that he or she has been constructively dismissed on the basis that the employer’s failure to follow the doctor’s advice on the fit note is a breach of trust and confidence if it would have permitted the employee to return to work.

If you receive a medical statement from an employee that suggests that the employee “may be fit for working, taking account of the following advice…”, you should take the following steps:

1. Discuss the medical statement with employee.
2. Consider how the advice on the medical statement affects the employee’s job and your work place.
3. Discuss any options which might facilitate a return to work with employee.
4. If a return to work is not possible, you should ideally agree a date for the next time that you will review the situation.  Alternatively, you should agree a return to work date if that is possible.
5. If a return to work is possible, agree when the employee will return to work, any adjustments that will be made and a date to review the arrangements.  You should of course continue to monitor the new arrangements, particularly in view of your duties regarding the health and safety of the employee.

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