From sick notes to fit notes

2 March 2010

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6 April 2010 will mark the introduction of 'fit notes', a new system for managing employee sickness absence that will replace the current incapacity certificates. The new system focuses on encouraging an early return to work in appropriate circumstances and reducing the costs of workplace absence.

The new system

GPs will have two options to choose from when assessing their patients. These are either:

"You are not fit for work"; or
"You may be fit for work taking into account the following advice".

Where an employee is certified as not fit for work, the GP will state the period of incapacity and whether the employee will need to be assessed again at the end of that period. This means that, provided the employee is fit to return to work at the end of that period, he or she will not need to return to their GP before returning to work.

Where an employee is assessed as being fit for some work, the GP is required to specify whether the employee would be assisted by:

A phased return to work
Amended duties
Altered hours
Workplace adaptations.

There is additional space on the form for the GP to make any specific comments about the employee's health, the effects of this or the adjustment suggested. The GP is also required to give an indication of how long the adjustment will need to remain in place.

Other changes the Regulations introduce are:

In the first six months of a health condition, the maximum period a GP can issue a fit note for is three months (reduced from six months).
Only GPs can issue fit notes, although it is proposed that this will be extended to other healthcare professionals in the future.
The certificates will be in electronic format (usually printed), which should assist with legibility issues often associated with the current sick notes.

Anticipated issues

As with any new regime, the fit note system will take some time to develop and for employers, employees and GPs to familiarise themselves with it. Below are some of the issues we anticipate will arise.

Do I have to rely on the GP's assessment of the workplace?

GPs will have limited knowledge of the employee's workplace and what the job entails. The recommendations are not therefore intended to be prescriptive, but are intended to facilitate discussions between employee and employer about what the employee can do and what changes the employer can make to enable him or her to return to work.

Will I be obliged to comply with the GP's recommendations?

Employers are not obliged to comply with a GP's recommendations. However, if the employee is disabled, the employer is under an obligation to make reasonable adjustments. Remember that the definition of a disabled person under the Disability Discrimination Act 1995 ("DDA") is much wider than commonly perceived and most employees who suffer from a long term condition will be covered.

What if I disagree with the GP's assessment?

The GP's assessment is not binding and it may be that in discussions with the employee it appears he or she is not ready to return to work or that you cannot make the adjustments required (subject to the above). In those circumstances, the employee is treated as being unfit for work and the fit note serves as evidence of the unfitness for SSP purposes.

About the author

This article was prepared by the FPB's legal advisers, Mace & Jones Solicitors and is a shortened version of an article which originally appeared on their website. You can read the full article here.

For more information on Mace & Jones visit www.maceandjones.co.uk

More information

The Department of Work and Pensions have produced an employers' guide to fit notes plus a sample of the new fit note.

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From sick notes to fit notes

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