The key change is that GPs will now be able to certify that an employee may be fit to perform some work. GPs can use the fit note to suggest a number of common changes that the employer can introduce to assist the employee's return to work. The Government's impact assessment on amending the regulations that prescribe the current form of sick note predicts that the fit note will save the UK economy around £240 billion.
The introduction of the fit note follows a Government review into the health of the working population conducted by Dame Carol Black in 2008. Her report concluded that around 175 million working days are lost to illness each year, costing the UK taxpayer an estimated £60 billion. Around 7% of the working population are on incapacity benefits and an additional 3% are off work sick at any one time. The report concluded that facilitating an early return to work benefitted both employees and employers.
The Government published its response to consultation on the new fit note at the end of January 2010.
On 18 February 2010, the Department for Work and Pensions (DWP) published guidance for GPs and other doctors on the new fit note.
How does the latest fit note differ from the Government's original proposals?
The new fit note is aimed at benefiting not just individuals and their employers, but the economy as a whole. Following consultation, the emphasis of the new fit note is firmly on the employer-employee relationship rather than the doctor patient relationship:
- The new form will not contain a ‘refer for occupational health' tick-box as it was feared this might be an easy default option for GPs
- The fit note will only have two options- ‘unfit for work' and ‘may be fit for some work taking account of the following advice'. The italicised words were added to acknowledge that it is not doctors but employers, in consultation with their employees, who are best placed to make the decision as to whether they can accommodate any changes. The GP should then tick one or more of the following options: phased return, altered hours, amended duties or workplace adaptations
- The ‘fit for work' option has been removed. The Government agreed that it is for the employer (not the employee's doctor) to determine whether an individual is fit to return to work, having carried out a risk assessment
- A fit note issued during the first six months of a patient's health condition will last three months (rather than the six months originally proposed)
Legal issues
The DWP's guidance helpfully confirms that an employer is not bound to follow a GP's suggestions in the fit note. However, ignoring a GP's recommendations contained in a fit note altogether (or failing to properly consider these) could well lead to claims for constructive and/or unfair dismissal, personal injury and disability discrimination.
Employers should therefore implement procedures to ensure that fit notes are acted upon, including appropriate consultation between employer and employee.
If a ‘fit note' discloses a disability of which the employer was not previously aware (or might support a disability) within the meaning of the Disability Discrimination Act 1995 (DDA), then the employer will need to consider whether reasonable adjustments are required to premises or working conditions for disabled employees. But simply following a GP's fit note advice will not necessarily discharge an employer's DDA obligations which are often complex to understand.
Large employers usually have well-established occupational health services and so, for them, the main change will be to encourage earlier resolution of sickness absence by improving contact during those first few tricky weeks.
But the real benefits of fit notes will be for employees and employers of small and medium-sized businesses that often have no recourse to occupational health services. Here a vague diagnosis by a GP unsupported by any practical suggestions for facilitating a return to work could lead to a long period of absence because of both parties' fear that forcing a return or indeed, contact itself, could worsen the patient's condition.
The Government has committed to monitoring and evaluating the outcomes of the fit note. A report will be published in 2012/2013.
Kathleen Healy is a partner, and Elizabeth Graves is a senior associate, in the employment, pensions and benefits team at Freshfields Bruckhaus Deringer
