Sick Note to Fit Note

Bearing in mind that the Statement of Fitness for Work comes in from 6th April 2010, getting detail at the end of February is not the most helpful, but it is available now and if you haven’t downloaded it, you can get it from the Department for Work and Pensions web site (www.dwp.gov.uk/fitnote).

ACAS are also offering training. The one in the East Midlands is available in Nottingham on 7th April – the day after the new system starts!

Under the “old” Sick Note system, doctors could only advise the patient that they should, or should not, be at work. This has led to employers contracting with Occupational Health (OH) professionals to obtain further advice about employees’ illness, aids and adaptations and likely return to work.

The new Fit Note will contain different information. It will still allow the doctor to state that “you are not fit for work”. But it will also allow them to certify that “you may be fit for work taking into account of the following advice.

If available and with your employer’s agreement, you may benefit from:

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

Comments, including functional effects of your condition.”

The certificate then goes on to say how long this will be for and if the doctor needs to see you again.

I am sure that all HR Managers are working through the implications now but here are some that I came up with.

• Absence Policy
Need to review this and update it where necessary.

• Advice to Managers
Consider if you need to extend your advice on what to do when faced with a “fit to work taking account of”, situation

• Submissions to OH
If faced with a “fit to work taking account of” situation will you submit to OH – or not? The guidance says that if a doctor feels an assessment by an OH professional is required, they will state it here. This cannot prevent the employer submitting the individual to OH, for example if they hit any trigger points.

• What will you do if you cannot accommodate the adaptations and will this be held against you at an employment tribunal?
The guidance says quite clearly that the individual will therefore remain sick. There is no obligation to make the changes, unless the employee is treated as disabled under the meaning of the Disability Discrimination Act (DDA). If disabled legislation applies then adaptations are required as reasonable alterations. The guidance contains a flow chart, which suggests that the employee will need to discuss the advice with the manager. At the end of the day it is the manager’s decision and for the manager to justify at any appeal or tribunal. It may well be that a failure to agree some minor alterations will be used by an employee to show a pattern of poor behaviour by an employer and it will be for tribunals to decide on the facts of any subsequent claim.

The case studies included in the guide all speak about the employee taking the advice and discussing it with the employer. This may be an initial cause of problems if the manager is part of the reason for the absence.

It may be worthwhile to consider that the purpose of the change is to reduce the national sickness rates and it would be sensible for any employer to consider realistic alterations to the employees work to facilitate an early return.