Fit notes: dealing with sickness absence

Judith Harris of Addleshaw Goddard continues a series of articles on the new fit notes system with a look at how employers should deal with sickness absence in the light of fit notes. The new fitness for work statements (or fit notes) will enable doctors to state that employees "may be fit for work" if they are given some support. The introduction of fit notes is likely to impact on how employers address sickness absence. 

Introduction

Statements of fitness for work, or "fit notes", will replace sick notes from 6 April 2010. The intention behind the introduction of fit notes is to encourage employees, employers and doctors to consider whether or not the employee may be fit to return to work from sickness absence if he or she could do some, or all, of the job, with support (see Fit notes: overview in this series for more details).

While the fit note system will not change employers' legal obligations when managing sickness absence (in particular in relation to the duty to make reasonable adjustments under the Disability Discrimination Act 1995 (DDA)), its introduction is likely to affect the way in which employers manage sickness absence. Employers should consider whether or not they need to make changes to their sickness absence procedures and policies in light of the new system.

How fit notes may affect sickness absence management

The new fit note contains an option for doctors to advise that an employee "may be fit for work taking account of the following advice". Where this applies to an employee, the doctor can tick one or more of four boxes to suggest common ways to facilitate a return to work, namely: a phased return to work, amended duties, altered hours and workplace adaptations. The doctor may also provide information on the functional effects of the employee's condition.

The introduction of the "may be fit for work taking account of the following advice" option is likely to have an impact on the way in which employers manage sickness absence in practice. While the government guidance on fit notes (Statement of fitness for work: A guide for employers (PDF format, 457K) and Statement of fitness for work: A guide for general practitioners and other doctors (PDF format, 213K) (both on the DWP website)) stresses that the advice given on fit notes is not binding on employers, the fact that doctors can suggest changes to a job or workplace could create an area of conflict between the employer and employee as to how the return-to-work process should be managed.

Not fit for work option

The fit note includes a "not fit for work" option. Sickness absence procedures are unlikely to be affected by the inclusion of this option on the note. The current sick note allows doctors to recommend that employees "refrain from work". The new "not fit for work" option reflects this.

May be fit for work option

An employer that receives a fit note for an employee on which the doctor has ticked the "may be fit for work taking account of the following advice" option will need to take this into account in its dealings with the employee. It is important for the employer to have an open dialogue with him or her at all times. The fit note is intended to enable doctors to provide information on which employers and employees can start a discussion about a possible return to work. It is not the final word on the matter.

The employer should review the fit note and consider the suggestions and comments made by the doctor and whether or not:

  • it is possible to provide the support suggested by the doctor, bearing in mind what effect the suggestions will have on the employee's ability to do his or her job and the workplace generally;
  • any other steps could be taken as an alternative, or in addition, to the doctor's suggestions, to facilitate a return to work; and
  • the doctor's advice is consistent with industry or sector-specific guidelines or regulations relating to the employee's role, and if not, whether or not alternative support can be offered.

If appropriate, the employer should also discuss the proposed changes with occupational health, particularly if the employee's condition is complex or the role is particularly demanding, or where there are difficulties in reaching an agreement on the return to work. In appropriate cases the intervention of occupational health may be key to a successful return. Most GPs are not trained in occupational health practice and will have insufficient experience of the employee's role to be able to make an accurate assessment of what adjustments are appropriate. An occupational health practitioner is likely to be better placed to find the right solution for both the employer and the employee. The Government is piloting an occupational health advice line for small business until March 2011 (see the Working for Health website for more details). The government guidance for employers includes contact details for finding occupational health providers.

The advice on a fit note is not binding on employers and the employer can choose how to act on the advice given in the note (taking into account the usual legal obligations). However, where the fit note relates to an employee who may have a disability under the DDA, the employer should be aware of its duty to make reasonable adjustments. This duty is unaffected by the advent of the fit note. If the employer declines, without good reason, to make an adjustment suggested on the fit note (or any other appropriate adjustment) that could enable the disabled employee to return to work, the employer may be in breach of its duty under the DDA.

Employers should discuss the contents of the fit note and possible options with the employee with a view to agreeing a return-to-work plan, which should be documented. The return-to-work plan should include details of:

  • when the employee is due to return to work;
  • the adjustments that will be made;
  • for how long the adjustments will remain in place and when they will be reviewed; and
  • the effect of the adjustments, if any, on the employee's other terms and conditions (for example, where the employee is returning on reduced hours and a reduction in pay is agreed as a result).

Where changes have been made to an employee's role or working conditions, the employer should carry out a risk assessment to ensure that there is minimal risk to the employee and others in the workplace. The Health and Safety Executive has published guidance on risk assessments (on its website). Where the employer and employee agree adaptations or adjustments that are different to those originally recommended on the fit note, it may be appropriate, as part of the risk assessment, for the employee to check with his or her doctor, or for the employer to check with occupational health, that the alternative arrangements are appropriate for him or her.

If adjustments aimed at a return to work are not possible, the employer should explain the reasons for this with the employee and treat the employee as if he or she is not fit for work. The employee will remain on sick leave and should continue to receive sick pay if it is due. The employer should agree a date with the employee to review the situation and ensure that this review takes place.

Employers should review their sickness absence management policies and procedures and update them as necessary to accommodate the introduction of fit notes (and consult on changes where necessary). It may be worthwhile for employers to include a statement in their policy to the effect that advice given on fit notes is not binding on the employer. Employers should also train managers on the new system and how to respond to fit notes.

Requirement to make adjustments

Fit notes will be issued to all employees as evidence of why they cannot work due to illness or injury. Doctors can suggest possible adjustments not only in relation to employees who may have a disability under the DDA, but also in relation to employees who are unlikely to be disabled. Employers are not bound to follow a doctor's advice on a fit note, and are under a statutory duty to make reasonable adjustments only in relation to employees who are disabled under the DDA. However, there are good reasons for employers actively to consider suggested adjustments in other cases.

Where an adjustment may facilitate an earlier return to work than would otherwise be the case, it will clearly be in the employer's interest to make the adjustment. A return to work will result in a saving in relation to sick pay, and is likely to lead to improved morale and performance.

Where an employer declines to make adjustments or consider alternatives to enable an employee to return to work and he or she is dismissed as a result of the ongoing absence, the employer's failure could contribute to a finding by an employment tribunal that the dismissal was unfair. Therefore, adjustments should not be dismissed out of hand just because the employee is unlikely to come within the remit of the DDA.

Conclusion

There are bound to be teething problems when fit notes are introduced. However, greater and more considered input from doctors should aid, rather than hinder, the return-to-work process for all. The key to success for the new fit notes system will be open and regular dialogue between employers, employees and doctors.

Next week's topic of the week article will be a case study around how the fit note will affect the process for dealing with long-term sickness absence, and will be published on 22 March.

Judith Harris (judith.harris@addleshawgoddard.com) is a legal director with Addleshaw Goddard.

Further information on Addleshaw Goddard can be accessed on its website.