The new format sick notes will contain two options: either ‘unfit for work' or ‘may be fit for work taking account of the following advice'.
Simon Rice-Birchall a partner at international law firm Eversheds, said: "Whether the new approach succeeds will depend, to a large extent, on how well GPs adapt to using the form. The DWP says it will be issuing guidance for doctors on the new medical statement and there will also be specific guidance for employers, although no publication date has been given.
"Employers will need to look carefully at how they manage sickness absence. Those with carefully considered return-to-work programmes will be better placed to benefit from the new regime. In contrast, employers that fail to engage with the new approach could find themselves at an increased risk of disability discrimination claims. This is because a new style report might highlight changes that an employer could make to the employee's duties or workplace that would help them return to work sooner."
Rachel Dineley, head of the diversity and discrimination unit at law firm Beachcroft, said: "All employers know how unsatisfactory a typical sickness certificate can be.
"The obvious risk [with the new system] is the GP will recommend a course that is costly or not feasible from the employer's perspective. Undoubtedly there will be teething troubles at the start and GPs will require training. Those already working under pressure will not necessarily welcome the additional time that will need to be taken to make this regime work.
"From an employer's perspective it will be all important for GPs to understand the workplace environment and what, in practice, can be accommodated, to facilitate a return to work. Dialogue between the GP, employee and employer will be essential to give full effect to the new regime.
"In its response the Government has recognised that it is not the doctor, but the employer in consultation with the employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work. It encourages employers to initiate discussions with their employees. If an employer is not able to facilitate a change or adjustment, the GP's advice on the statement will be evidence that an individual has a condition that prevents them from carrying out their current role. Employers that work with occupational health practitioners may disagree with the GP's advice. If the employee's condition constitutes a disability, under the Disability Discrimination Act - to be replaced with provisions in the Equality Bill, currently going through Parliament - the employer will have a duty to make reasonable adjustments in any event.
"An area that is already seen as complex may become more complicated still. However, if it serves to help reduce sickness absence and encourages proactive steps to facilitate an employee's earlier return to work, there may be economic benefits all round."
And Pamela Gellatly, chief executive of Healthcare RM, added: "The Government's response is certainly a move in the right direction. One of the biggest problems with the fit note system is the fact that GPs are not in a position to decide what a person can or cannot do with regards to their role at work. GPs have neither the experience nor the time to make proper assessments and are largely reliant on the subjective reporting of the individual about what their job involves. Placing more responsibility on both the employer and the employee to work together to find appropriate solutions should have a positive impact on reducing the numbers of days lost to sickness absence each year."
