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Home | News & events | Legal updates | Employers must be prepared for fit notes

Employers must be prepared for fit notes

07 April 2010

The new statement of fitness for work (fit note) replaced the current medical statement or ‘sick note’ on 6 April 2010.

Like the old sick note the new fit note will be issued by doctors and will be able to be used by employers as evidence for sick pay purposes.

The old sick note simply stated whether the employee was fit for work or not fit for work. The fit note will not contain a ‘fit for work’ option, but will allow doctors to advise whether the employee may be fit for some work if they get certain support from their employer.

The fit note also allows the doctor to recommend:

• a phased return to work
• amended duties
• altered hours
• workplace adaptations

The doctor will be able to write more detailed comments on the form suggesting the kind of things that may help the employee.

The information on the fit note is advice to the employee and is not binding on the employer. It is for the employer and the employee to discuss and agree changes to enable a return to work.

If the employer is not able to make the accommodation suggested by the doctor then the employee will not be able to return to work and will continue to be treated as off sick.

The requirements for the payment of statutory sick pay (SSP) and the provisions of the Disability Discrimination Act 1995 (DDA) have not been amended in any way to reflect the introduction of the fit note.

An employer will still have a duty to make reasonable adjustments where the employee is ‘disabled’ within the meaning of the DDA.

It is worth noting that the weekly rate of statutory sick pay has not been increased this year and remains at £79.15.

Difficult issues

As with any new legal development this is likely to take sometime to bed-in, and we will have to wait and see how things develop in practice. However, some potentially difficult questions have already been identified, including: 

• is an employee entitled to continue to receive some SSP if they are making a phased return?
• can we reduce an employee’s pay if we agree to allow them to reduce their hours?
• if a fit note says the employee may be fit for some work but they say they are not willing to return what can we do?
• can an employee claim disability discrimination if we can’t implement a doctor’s suggestion on a fit note?
• if an employee is receiving full or reduced pay under an occupational sick pay scheme what is the position if they return on reduced hours?

Practical advice for employers

Any adaptations, for example, amended hours, should not be granted for an open ended period but for an initial, set time. A review date for the agreed arrangements should be agreed with the employee at the outset.

If someone is returning to the workplace with an on-going health issue then it will be necessary for the employer to carry out a risk assessment. In specific industries or jobs this may throw up reasons why the doctor’s recommendation can not be implemented.

Employers should contact their insurers if they have any concern about the coverage of their employer’s liability insurance policy but, generally it should not be necessary for the employee to be certified fit before they return to work.

Action points for employers

• consider if sickness absence policies need to be amended
• if you have an occupational sick pay scheme consider if its terms need to be amended
• train HR and line managers to deal with fit notes and returning employees, for example to carry out risk assessments and manage returning employees appropriately
• consider if you need to implement any new policies or procedures to deal with fit notes in practice

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

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Helena Derbyshire

Partner
T: 03700 86 6809
I: +44 (0)1489 61 6809
E: helena.derbyshire@shoosmiths.co.uk