Legal implications of the fit note

The new Statement of Fitness for Work will put more demands on OH practitioners, leaving room for employee grievances. But remember, GP recommendations are not binding, write Linda Goldman and Joan Lewis.

On this page:
Occupational health
The fit note
Fit for work?
Medical certificate
GP recommendations
Monitoring adjustments.

Remember when employers retained a GP as "the company doctor"? He had no training in the essential balance between the needs of the workplace and those of the employee. Along came a pivotal case that stimulated the need for a specialised occupational health (OH) service, Stokes v GKN (Nuts & Bolts Ltd) [1968] 1WLR 1776. GKN's company doctor decided staff would be upset to know they were at risk of developing scrotal cancer. He decided that morale would be higher if they were not warned of the dangers of carcinogenic chemicals seeping into their overalls.

The fact that the case was brought (successfully) against GKN speaks for itself. The court took the view that the company would have known of the risks if it had used a competent doctor.

Occupational health

OH developed as a speciality to deal with the health, safety and welfare of personnel in the work environment to address the need for basic competence in medical personnel in a particular area of work against the developing complexities of legislation and litigation.

Repetitive strain upper-limb disorders and stress-related illness have made it increasingly clear that what happens at work is outside the remit of the GP, and dedicated OH personnel are crucial to understanding, preventing and dealing with work-related health. They are either on site or readily available and can assess fitness for work in the context of the specific workplace, the individual's job description, and the actual requirements of the role.

The fit note

Has the clock been turned back with the abolition of the NHS forms Med 3 and Med 5, familiarly known as sick notes? The fit note, more formally known as the Statement of Fitness for Work, provides GPs with the option of suggesting recommendations to the employer to make temporary changes to the way the employee returns to work effectively during the later stages of a recovery period. These changes are not dissimilar to those that might be deemed "reasonable adjustments" in the context of disability discrimination legislation.

Giving GPs this role is an extraordinary turnaround in the OH world, even if the options open to them include referral for assessment by an OH specialist.

The fit note provides two alternatives:

• "You are not fit for work"; or
• "You may be fit for work taking into account the following advice".

The certificate can be provided electronically, reducing the possibility of it being lost, and helping employers to keep a record. The doctor will, as before, state the anticipated period of illness, but will also say whether another examination will need to be carried out before the end of that period.

Fit for work?

An employee who is fit to return at the end of the specified period need not see the GP before taking up the reins again. The areas that need to be considered carefully by management and OH are the suggestions made under the heading of "the following advice" and the proposed duration. The particular points of recommendation will be familiar to anyone who has ever had to advise on disability adjustments, save that these should not be permanent:

• A phased return to work.
• Amended duties.
• Altered hours.
• Workplace adaptations.

The maximum duration of the first period of anticipated sickness has been reduced from six to three months, with provision for "other healthcare professionals" to issue fit notes in the future. At present, if the employer disagrees with the GP's opinion - or, indeed, if the patient/employee disagrees - an independent assessment can be carried out. Any doubts about how to deal with specific situations can be resolved by looking at the Department for Work and Pensions guide (PDF format, 242K) (external website).

Short-term absence is a funny thing. If a doctor went for self-diagnosis and self-medication, he might end up in front of the General Medical Council on a disciplinary charge. Yet the mainstay of short-term absence, self-certification, requires an employee to act as a physician and often to heal himself. Leave it to the employee to make their own diagnosis and what do we have? An extraordinarily high proportion of diarrhoea and vomiting that afflicts the working population a day at a time.

Of course there are more cases of illness or injury than creative malingering. Those who are genuinely ill require support not only from the medical profession for treatment, but also to deal with longer absences from work and loss of income. There are few employers who will pay contractual sick pay without a medical certificate attesting to the reason for absence and most long-term or repetitive short-term absence requires formal justification and an assessment of a likely return date.

Medical certificate

In addition to being the prerequisite for obtaining Statutory Sick Pay, a medical certificate identifies the medical condition the absentee suffers. The emphasis has always been on unfitness to work, a matter in the realm of the GP. That has changed with the advent of the fit note.

The purpose of the original medical certificate was to give information about the employee's health to the employee, which he would impart to his employer. The employer was not obliged to accept the information in the certificate and, to that extent, nothing has changed: a specialist working for the employer who is familiar with the specific demands of the workplace and the nature of the working environment can offer an alternative opinion.

The Employment Rights Act 1996 provides that a potentially fair reason for dismissal is the lack of capability of an employee to do the work he is employed to do, and the employer has the right to take an independent opinion from someone who will be in possession of all the facts relating to the job and the way the employee carries it out. However, there is the possibility that the Disability Discrimination Act 1995 (DDA), soon to be subsumed into the Equality Act 2010, applies, requiring the employer to make reasonable adjustments if an employee has a long-term condition covered by the DDA.

GP recommendations

The GP cannot know the way the business operates and is not necessarily aware of the problems of sickness presence. Work colleagues are often unimpressed with having to assist others in addition to carrying out their own work or at the expense of their personal productivity. The recommendation that an employee should return on reduced hours may be impossible in practice as it makes it difficult to get temporary cover. There are endless examples of lack of understanding of workplace requirements making it impossible to comply with GP recommendations. Consider the suggestion that a long-distance driver should work shorter hours: has the person making the recommendation thought about how to get him back on site to change over with a replacement?

Fortunately, GP recommendations are nothing more than just that. They are not binding, but they may be annoying. This will put more demands on OH practitioners as they will have to make their own recommendations in the light of what the GP thinks and has discussed with the patient. This leaves room for grievances from employees who would prefer the employer to comply with the fit note recommendations. On the plus side, GPs will be required to try to get the employee back to work rather than wait for the completion of an arbitrarily chosen recovery period.

It is time for OH and HR to review the sickness absence policy, ensuring that, on completion of health-related absence, there will be a fit note with a proposed return date. The policy should refer to the fact that any GP recommendations are not binding and the employer has the right to procure its own medical assessment or, if a fit note is not produced, to refuse resumption of work. It is also important to clarify how pro-rata pay provisions will operate if applicable where there is a phased return to work.

Monitoring adjustments

The employer should monitor any temporary adjustments to hours or duties of employees returning to work after sickness and ensure the arrangements do not inadvertently become permanent. Any change that is made is for the purpose of resumption of full productivity and attendance. Where employees' conditions are covered by the DDA, there may be permanent changes required. OH advisers and line managers should carefully monitor employees' long-term symptoms in case there is a slide into disability, requiring the employer to comply with the DDA's requirement to make reasonable adjustments. When someone returns to work under conditions recommended by the GP, it is essential OH does a risk assessment to prevent claims for personal injury that may arise if the original injury is exacerbated by work.

The fit note is arguably the first page of a script for discussion about how to resume work after a period of absence. Long-term or repetitive absentees may try to avoid dismissal on the grounds of capability, so even if the absence policy is updated to allow a phased return to work, the policy must make it clear that the employer may still dismiss staff in some cases on the grounds of capability.

Linda Goldman, BDS, LLB, is a barrister at Henderson Chambers, Temple, EC4Y 9DB. Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.