Fit notes: overview

Anna Bridges of Addleshaw Goddard begins a series of articles on the new fit notes system with an overview. The new fitness for work statement (or fit note) will change the way in which doctors certificate sickness absence and allow them to state that an employee "may be fit for work " if changes are made to the job or workplace. 

Introduction

Statements of fitness for work, or "fit notes" will replace sick notes from 6 April 2010. The new fit note is intended to give employees and employers greater flexibility in managing sickness absence and help more people to get the support that they need to get back to work. 

The sick note

The current sick note, which has remained largely unchanged since the foundation of the NHS, requires doctors to specify the relevant individual's medical condition and state for how long he or she is expected to be absent from work as a result. It includes a "remarks" section, which can be used by doctors to suggest amended duties as an aid to rehabilitation. However, it does not encourage doctors to explore with patients the options for a quicker return to work or whether or not workplace adjustments would facilitate this.

Dame Carol Black's review

In March 2008, Dame Carol Black, National Director for Health and Work, conducted a Review of the health of Britain's working age population - Working for a healthier tomorrow (PDF format, 2.23MB) (on the Working for Health website). In her review, she reported that ill health costs the economy over £100 billion a year. She made a number of recommendations to help people return to work if they become ill. One of her recommendations was to replace the current sick note with a "fit note", switching the focus to what people can do and potentially improving communication between employers, employees and doctors.

The Government accepted Dame Black's recommendation to change the sick note system and, after discussions with stakeholders and a trial of a new statement with over 500 GPs, drafted Regulations to implement the proposed changes. In May 2009, the Department for Work and Pensions (DWP) launched a consultation (Reforming the medical statement (PDF format, 2.07MB) (on the DWP website)) on draft Regulations, which closed in August 2009. In its response to the consultation (PDF format, 230K) (also on the DWP website), published in January 2010, the Government reported that, overall, respondents were broadly positive about, and supportive of, the move to creating a statement of fitness for work. Support was strongest among employer representative bodies, with the trade union respondents expressing some caution.

As a result, the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 (SI 2010/137), which will introduce the fit note system, will come into force on 6 April. The fit note will streamline into one form the current Med 3 form (which is used in most circumstances) and the Med 5 form (which is used in specific circumstances, for example where the doctor's advice is based on a previous examination).

Comparison of sick notes and fit notes

Like sick notes, fit notes will be able to be used as evidence of why employees cannot work due to illness or injury. The advice on the sick note to refrain from work is reflected on the fit note with a "not fit for work" option. As with sick notes, employers will not be able to require employees to provide a fit note until after seven calendar days of sickness, for statutory sick pay purposes. The advice given on forms will still be advice to employees and employers will not need to follow the doctor's recommendations. Employers' obligations to pay statutory sick pay and make reasonable adjustments under the Disability Discrimination Act 1995 (DDA), if it applies, will not change.

The main difference between the current sick note and the new fit note is the replacement of the "fit for work" option with a new option for doctors to advise that an employee "may be fit for work taking account of the following advice". There will be more space on the note for doctors to provide information on the functional effect of the employee's condition. Doctors will also be able to specify whether or not they need to see the employee again when the fit note expires. This will help to reduce uncertainty for employers about when an employee can be expected to return to work.

Another difference between the current system and the new fit note system is that, during the first six months of an individual's sickness, a fit note cannot be issued for more than three months. After the first six months, the fit note can be issued for any appropriate period up to an indefinite period.

"May be fit for work" option

The change that is likely to have the greatest impact on employers is the new "may be fit for work taking account of the following advice" option on the fit note, which a doctor may tick where he or she believes that an employee could do some work with appropriate support from his or her employer. The doctor has the option of setting out suggested arrangements that could help the employee return to work. Commonly suggested arrangements, such as a phased return, altered hours, amended duties and workplace adaptations are set out on the form as boxes that a doctor can tick. There is nothing to prevent the doctor from ticking more than one box. There is also room for the doctor's comments. Where a doctor feels that an assessment by an occupational health professional is required, if available to the employer, he or she may state this in the comments box.

According to the government guidance for employers (see below), the new option of "may be fit for work taking account of the following advice" will result in fewer employees being signed off work when they possibly could do some or all of their job with some support, and employers receiving more information about how an employee's medical condition will affect his or her ability to carry out the job. This will help employers to have informed discussions with employees about taking steps to return to work earlier than they might otherwise have done. It is envisaged that the "may be fit for work taking account of the following advice" option may help employers to make simple and practical adjustments to reduce unnecessary sickness absence.

Guidance

The Government has published guidance for employers on the new fit notes (Statement of fitness for work: A guide for employers (PDF format, 457K) (on the DWP website)). Some employers have expressed concerns that doctors are not sufficiently trained in occupational health to make an informed assessment about whether or not an employee is capable of working, and that they may not make realistic recommendations. However, the guidance states that, if it is not possible for an employer to provide the support recommended by a doctor for an employee to return to work, the employer and employee should use the statement as if the doctor had advised that the employee is "not fit for work". The employee does not need to return to the doctor for a new statement to confirm this. (However, it should be noted that employers may have an obligation under the DDA to consider reasonable adjustments.)

The Government's guidance for doctors (Statement of fitness for work: A guide for general practitioners and other doctors (PDF format, 213K) (also on the DWP website)) states that, when advising patients that they may be fit for work, doctors should describe (in the comments box) the limitations that the person may have without being too prescriptive about the solutions. Examples given in the guidance are that a doctor may advise that a person with lower back pain "cannot sit for long periods of time" rather than that he or she "should be provided with a better chair", or that a person with travel-related anxiety might benefit from "avoiding travel in peak hours" rather than that he or she "should work between 10am and 4pm". Similarly, if patients need a specialist referral that may require time off work, doctors are advised that it would be helpful for them to note this in the comments box.

When determining what action to take as a result of advice given on a fit note, employers will need to consider whether or not a workplace risk assessment is required and keep this assessment under review. It may be helpful for employers to discuss this process with employees. When agreeing a return-to-work plan employers should be clear about the duration of adjustments to an employee's role. In most cases adjustments will be temporary.

The future

It is likely that doctors will need time to adjust to the fit note. At present, only a small percentage of doctors have received training on the fit note. It remains to be seen how it will work in practice and whether or not it will help to reduce the length of sickness absences.

The Government recognises the importance of monitoring and evaluating the effectiveness of the new regime and has announced that it will publish an evaluation during 2012-2013.

Next week's topic of the week article will look at how the fit note will affect the process for dealing with long-term sickness absence, and will be published on 15 March.

Anna Bridges (anna.bridges@addleshawgoddard.com) is an associate with Addleshaw Goddard.

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