What are fit notes and how will they affect my company?

Dear Auntie,

I am the Director of HR at a medium-sized recruitment consultancy. I have recently read a few articles about new ‘fit-notes’ that the government will be introducing but I don’t quite understand what this will involve. We have had employees in the past who were signed off sick for longer than necessary, which had a huge impact on the business. Will the new system address this problem?

Yours sincerely

Mr C. Change

Dear Mr Change,

What you have heard is correct, the government is proposing to introduce a system to replace the current system for signing employees off work. Currently, as I am sure you are aware, an employee is signed off by their doctor and cannot return until their doctor decides that they are fit to return to work. The current system does not take into account the fact that some employees may be able to carry out certain tasks, whilst they await the all-clear from their doctor. The result of this is that often employees that are able or would like to return to work find themselves at home for longer than necessary.

Fit-Notes- The Key Changes:

1. The new fit-notes will be electronic instead of the paper notes that are currently given out (although hard copies can be provided where necessary).
2. Under the new system there will be three categories of ability to work: ‘fit’, ‘not fit’, ‘may be fit for some work now’.
3. When an employee falls into the ‘may be fit for some work now’ category, their doctor must then go on to describe the effects of the employee’s condition. This will help to inform the employer so that they know the true nature of the employee’s illness and how it may impact their ability to return to work.
4. Alongside describing the effects of the illness, doctors will have the option to suggest appropriate arrangements to help the employee back to work for example:
   1. Phased return to work
   2. Altered hours
   3. Amended duties
   4. Work place adaptations

This is an option however, there is no requirement on practitioners to make any suggestions if they do not wish to.

What does this mean for employers?

It is hoped that this new system will prevent long term absence from work as employees’ ability to work will be assessed in terms of what they can do rather than what they can not do. Very often employees are not working because the current system adopts a black and white approach to employee’s ability to work, and doctors do not have room to consider anything other than whether the employee can or can not work. The new system should be beneficial to employers in that employees should be able to return to work sooner even if they not performing their full duties or possibly carry out some work from home until they are fit to return.

The Government intends that the introduction of the new system will encourage greater dialogue between medical practitioners and employers in order to assist employees in returning to work as soon as possible.

Potential problems

Whilst the new system should make managing sickness absence easier for employers and employees, there are a few concerns about the new system. The first major concern is that most GPs do not have sufficient training in occupational health matters. This may mean that GPs are not equipped to assess what changes can be made to accommodate an employee’s return to work.

The government has not addressed what will happen where the employee and the medical practitioner disagree over the employee’s return to work. If the doctor decides that the employee is fit to take up some minor duties but the employee feels they are not ready, what should the employer do in this situation?

There is also a concern about employees who are disabled for the purpose of the Disability Discrimination Act. Some employers are worried that a failure to implement a doctor’s recommendations might constitute a failure to make reasonable adjustments, which could lead to litigation.

These issues will need to be addressed by the government before the new system is implemented in 2010.

Rebecca Ekundayo is a trainee solicitor at Fox Williams LLP. She can be contacted on 020 7628 2000 or rekundayo@foxwilliams.com.