Fit notes: frequently asked questions

Adam Johnson of Addleshaw Goddard concludes a series of articles on the new fit notes system with some frequently asked questions that look at the information that doctors will be able to include on, and employers' obligations in relation to, fit notes. Doctors will be able to suggest ways that employers can offer support to employees to enable them to return to work after periods of sickness absence. Employers are not bound to follow the advice that doctors give on fit notes but should use it as a starting point for discussions with employees about returning to work. 

When do fit notes come into effect?

Statements of fitness for work, or "fit notes", will come into effect on 6 April 2010. They will replace sick notes (ie the Med 3 and Med 5 forms) that doctors give employees to provide evidence that they are unfit to work. (See Fit notes: overview in this series for more details of the fit notes system and the reasons behind its introduction.)

How do fit notes differ from sick notes?

Sick notes allow doctors to advise only whether an individual should or should not work. However, fit notes will allow doctors to tick an option to advise that an employee either:

• is "not fit for work" where he or she has a health condition that prevents him or her from working; or
• "may be fit for work taking account of the following advice" where he or she is not fit to return to work to perform all of his or her normal duties, but may be able to return to work if the employer offers some support.

What further information should doctors include on fit notes when they tick the "may be fit for work taking account of the following advice" option?

If a doctor advises that an employee "may be fit for work taking account of the following advice", he or she will be required to provide further information, including information on the functional effects of the individual's condition (see Statement of fitness for work: A guide for general practitioners and other doctors (PDF format, 213K) (on the DWP website)). The doctor can indicate what adjustments could assist the employee to return to work by ticking one or more of four boxes, to suggest: a phased return, amended duties, altered hours and/or workplace adaptations. The doctor can also include further suggestions and information in the comments section, for example by recommending that the employee is referred to occupational health for an assessment.

How will fit notes change the way in which employers deal with long-term sickness?

Although fit notes are unlikely to have a major impact on procedures for addressing long-term sickness, they are intended to facilitate an earlier and more informed discussion about a possible return to work than was previously the case. The advice given on fit notes may be used as a starting point for discussions between employers and employees and could encourage an earlier referral to occupational health. (See Fit notes: dealing with sickness absence and Fit notes: case study in this series for more details on how employers should deal with sickness absence in light of fit notes.)

Will the fit notes system change employers' obligations under disability discrimination legislation?

No. Employers' obligations under the Disability Discrimination Act 1995 (DDA), including the duty to make reasonable adjustments in respect of employees who are disabled under the DDA, will be unaffected by the introduction of the fit notes system. However, a fit note is likely to be helpful to an employer that is considering whether or not an employee can return to work and, if he or she can, what adjustments it should consider to facilitate this.

What should an employer do if it receives a fit note that says that an employee "may be fit for work taking account of the following advice"?

Doctors' advice on fit notes is intended to help employers manage the return to work of employees who are on sickness absence. Therefore, an employer that receives a fit note that says that an employee "may be fit for work taking account of the following advice" should consider the advice on the fit note carefully, discuss it with the employee and seek to agree with him or her how the recommendations can be implemented. The employer should agree with the employee the specific adjustments that will be made, for how long they will apply and any other consequential changes (for example a change to pay where a reduction in hours has been agreed).

Are employers obliged to comply with the advice on fit notes?

The advice given on fit notes is advice for employees and is not binding on employers. Most GPs are not trained in occupational health and it is understood that only a small percentage will have received specific training on the fit notes system in time for its introduction. Doctors have a limited amount of time to see patients and often have only the patient's account of the symptoms. The government guidance for doctors (see above) and employers (Statement of fitness for work: A guide for employers (PDF format, 457K) (on the DWP website)) makes clear that fit notes are not binding on employers and it is ultimately the employer's decision how to act on the advice, taking into account its wider legal obligations.

If the employer is unable to implement the suggestions on a fit note it should explain this to the employee and treat the fit note as if the doctor had advised that the employee is "not fit for work". The employee does not need to return to the doctor to confirm this. Alternatively, the employer could request that the employee return to his or her doctor for advice on alternative suggestions for adjustments. The employer could also seek specialist occupational health advice.

What should employers do to prepare for the introduction of fit notes?

Fit notes are replacing sick notes from 6 April 2010. Therefore, employers should review and update absence management and/or company sick pay policies and procedures to refer to fit notes. Policies and procedures should make clear that the advice on fit notes is not binding on the employer. Employers should also train relevant managers and staff on how to deal with sickness absence in light of the fit notes system and how to respond if they receive a fit note.

How should employers deal with an employee who fails to provide fit notes?

The procedure for dealing with employees who fail to provide evidence of their incapacity for work is unaffected by the introduction of the fit notes system. As with sick notes, employers can require employees to provide a fit note after seven calendar days of sickness, to be eligible for statutory sick pay. Further, employees who fail to provide fit notes in accordance with their employer's sickness absence reporting procedure may lose the right to occupational sick pay.

If an employee fails to provide fit notes the employer should advise him or her that failure to provide a fit note without a good reason could result in the loss of sick pay and the absence being treated as unauthorised. If the employee continues to fail to provide fit notes the employer should deal with the matter under its disciplinary procedure.

Is there further guidance or assistance for employers in relation to fit notes?

Yes. The Government has published guidance for employers and doctors (see above). It is also piloting an occupational health advice line for small businesses 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.

Next week's topic of the week article will be the first in a new series on additional paternity leave and pay, and will be published on 6 April.

Adam Johnson (adam.johnson@addleshawgoddard.com) is an associate with Addleshaw Goddard.

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