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Will Fit Notes (Get Us Back To) Work?

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It is now over 3 weeks since the new ‘fit notes' came in to replace the traditional sick note system. This change represents a complete overhaul of a system that has not changed since the creation of the NHS in 1948 and an attempt to put an end to the legacy of ‘sick note Britain'.

It is hoped that the shift in focus from what people cannot do, to what they can, will reduce the estimated £100 billion and 172 working days that sickness absence costs the UK economy each year. So how should the changes affect the way businesses deal with their sick employees?

The first point to note is that the new Statements of Fitness to Work (or ‘fit notes' as they have become known) will only come into play when employees have been off work for 7 days or more. The same was the case for the fit notes' predecessors, the Med3 and Med5 forms, which means that employers will continue to face the problems of dealing with employees who take intermittent short-term absences (such as the traditional ‘sickie' referred to in the recent Coca Cola adverts).

Instead, the fit note scheme is targeted at the long-term sick - the estimated 400,000 people who have been out of work for more than a year. For some of those employees, their sick pay entitlement has been exhausted and adjustments to help them back to work are not discussed or considered until after a number of months of absence.

The traditional sick notes (the Med3 and Med5 forms) can be given for 6 months, meaning that an employee on long term sick leave only has to see his or her doctor twice a year. Previously it seems that GP's have typically erred on the side of caution and signed employees of work until they are completely recovered (not wanting to make the situation worse). In addition, although the Med3 form does include space for notes from the GP, these are rarely completed in any detail, with the only information provided being something such as "stress/anxiety" or "back pain", which does not help employers to know how they may be able to help.

The system has now changed. Whereas the old system merely allowed GPs to say whether or not a worker was fit to worker, the new scheme gives a third option: that the employee may be fit for some work. The fit notes allow the employee's GP to set out that the employee "may be fit for working taking account of the following advice..." and gives suggested adjustments which could be recommended (including a phased return, altered hours, amended duties and workplace adaptations). In addition, the maximum length of the fit notes has been reduced to 3 months.

The aim of the new system is to encourage frank dialogue between employee, employer, and a medical professional at an early stage of the absence. Although the medical advice is not binding on the employer, it is hoped that the focus on work the employee could do (rather than a statement that the employee is simply not fit for work) will facilitate a return to the workplace - to the benefit of the employee, the employer and the wider economy.

The fit note system has generally been welcomed by employers struggling to deal with employee absences. However, we will have to wait and see whether the new system will achieve its aims and get more employees back in work. There is concern that GPs simply do not have the requisite knowledge of occupational health and will not be able to find out enough about the employee's working environment in a 5-10 minute consultation to provide any meaningful advice. Further, there is still uncertainty about whether GPs could incur any sort of liability if their recommendations force the employee back to work too early, thereby exacerbating the employee's condition. As such, it may be that GPs will continue to adopt a cautious approach, which will result in very few real changes.

The success of the scheme is also dependent on a change in attitude for both GPs and employers. The general consensus of medical professionals seems to have been that an employee should be fully recovered before they brave the workplace, yet the new system depends on the GPs advising that employees return to work earlier. Employers will also have to change their approach and engage with the sick employee at a much earlier stage. This could place a heavy burden on smaller businesses which do not have occupational health assistance.

The recommendations in the fit notes are not binding, but it is easy to see how a dispute would arise if a GP recommends a change in duties or workplace adaptations, which the employer feels are simply not feasible for economic or other reasons. In such a case, one may find the employee taking more time off whilst arguing that their employer should be doing more to facilitate their return.

One other point to note is the cross-over of the adjustments recommended by GPs in fit notes and the duty on employers to make reasonable adjustments for disabled employees. It is important that the duty to assist an employee back to work and to consider the recommendations in any fit notes is distinguished from the duty to make reasonable adjustments under the Disability Discrimination Act 1995 ("DDA") as the former should be a much less onerous obligation on the employer. For example, in order to comply with its duty to make reasonable adjustments for a disabled employee, a business may have to spend a substantial amount of money making structural changes or providing assistance software. It is not intended that the same obligations are put on employers to put the recommendations in fit notes into practice. Whilst certain illnesses (such as cancer and MS) constitute disabilities under the DDA from diagnosis, in most cases whether an employee is disabled under the DDA will depend on their specific symptoms and prognosis.

In summary, the success of the fit note scheme will require some new ways of thinking from medical practitioners, employers and employees, and it will be interesting to see whether real changes are effected in the way workplace sickness absence is dealt with. It is likely that employers with sound occupational health departments will cope better with the change but, so long as employers see the recommendations as a starting point for discussions (rather than burdensome obligations placed upon them), the new scheme should at least bring some employees back to the workplace.

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