Current law
Fit notes reform
What will this mean for the management of sickness absence?
Comment


A recent announcement has introduced new flexibility in relation to fit notes. From 1 July 2022, a wider group of healthcare professionals will be able to issue fit notes, which will potentially make the process both easier and more effective. This article examines what was behind this change and what it might mean for the ever-challenging task of managing sickness absence in the workplace.

Current law

The strict lockdown rules of 2020 and 2021 necessitated a more flexible approach to the issuing of fit notes, during a time when it was extremely difficult to see a general practitioner (GP). This trend continued in April 2022, when the law was changed to allow fit notes to be digitally issued. A perhaps unexpected announcement this week sees yet further flexibility on this front – from 1 July 2022, a wider group of "healthcare professionals" will be able to issue a fit notes, providing evidence about fitness for work and advice on how to support a return to work. This change will apply across Great Britain and Northern Ireland.

Fit notes, or to give them their official title, "statements of fitness for work", are familiar documents to those managing staff. The scarce information sometimes scrawled on these notes can take on huge significance in absence management.

Looking at the underlying rules, after the first seven days of a period of sickness absence, an employer may insist that a fit note or other reasonable evidence is provided by the employee in order for them to qualify for statutory sick pay. Fit notes, issued after an assessment of fitness to work, are by far the most commonly used and readily available form of evidence. Any additional company sick pay that may be offered is also likely to be conditional on the employee both holding a valid fit note and providing a copy of this to their employer as soon as they receive it.

As it stands, a fit note may only be issued by a doctor, whether in primary or secondary care. In most cases, an employee will obtain a fit note from their GP. However, for two reasons this arrangement does not sit easily with the modern reality of primary care.

Firstly, GPs are overstretched and struggling to meet the demands put upon their time. For this reason, even if a fit note is issued digitally, there may be a delay in an employee being able to obtain it. This change should alleviate a degree of the pressure placed on GPs and is a reform that the British Medical Association has long been in favour of.

Secondly, primary care is increasingly a multi-disciplinary setting. Patients are treated by a range of healthcare professionals, such as nurses, physiotherapists, pharmacists and paramedics. In many cases, it may not be the GP who has the most information about a patient's condition or is, in that particular case, the logical person to give information about their fitness for work.

Fit notes reform

In recognition of these trends and challenges, from 1 July 2022, amendments to the relevant regulations on who can issue fit notes substitute references to "doctor" with the more broadly defined term "healthcare professional". This covers the following roles:

  • a registered medical practitioner;
  • a registered nurse;
  • a registered occupational or physiotherapist; and
  • a registered pharmacist.

While this should not change the basis on which someone might be signed off sick, the process should be administratively easier.

Will employees, therefore, be queueing up in their high street pharmacy to be signed off work? The press release issued by the government indicates that this change will be delivered in general practice and hospital settings. This would suggest that fit notes will not be something that community pharmacists can issue, and indeed they are unlikely to have access to the necessary patient information to fulfil this function. Further information on how this will operate will hopefully be provided when this guidance on getting the most out of the fit note is updated on 1 July 2022.

What will this mean for the management of sickness absence?

It will be welcome news for employers that this change will not necessitate any changes to company sick pay policies or internal processes. The timescales for the entitlement to statutory sick pay also remain unchanged. But will this change the function the fit note plays in informing the employer about the reason for an employee's absence and their prognosis?

Some employers may feel concerned that a fit note issued by someone other than a doctor lacks the authority of the "traditional" fit note. For example, surely a physiotherapist would not be in a position to sign off a patient suffering from depression?

That concern is hopefully misplaced. The rationale behind the revised rules is that a fit note should be issued by the healthcare professional who has been treating the patient for the condition in question. Logically, professional obligations and the history of care should mean that fit notes are only issued by the appropriate practitioner in the circumstances, and when the assessment lies within their area of competence. Yet what is appropriate may not always be clear cut, and the government has indicated that Health Education England will be issuing guidance to determine which individuals within a professional grouping can perform fit note certification and how to reduce the risk of issuing fit notes outside a practitioner's scope of practice.

It remains to be seen whether employers will increasingly look to either challenge the validity of fit notes or to seek further information to support or better understand the employee's diagnosis. Crucially, this is a process requiring the employee's consent and co-operation. Employers can of course seek a medical report from an employee's GP, but this would be covered the Access to Medical Records Act under which explicit consent is needed from the employee. A one-off report from an independent specialist or occupational health physician will not generally be covered by this legislation, but the employee must of course agree to be seen and often can veto whether the report is released to their employer.

Part of the purpose of a fit note is to provide advice about fitness for work, as well as simply the fact that someone is signed off sick. The doctor can indicate whether adjustments such as a phased return or altered hours or duties may assist, and there is space to provide comments about the effects of the relevant condition. Although this section of the form is often not completed by GPs, this is an area where expansion of healthcare professionals who can provide this information may be beneficial. For example, a physiotherapist or specialist mental health nurse may be providing an individual with regular or long-term treatment, and therefore is in a good position to provide more detailed comments about an individual's condition and what might assist them to return to work.

Comment

It is now almost a year since the government issued its response to the consultation "health is everyone's business". Although fit notes were not expressly part of this consultation, the government indicated that many respondents commented on how the certification process could be improved. There were, however, many other important topics that were directly addressed – such as how employers access occupational health support and statutory sick pay – on which concrete reforms have not yet been forthcoming. Whether changes to legislation in these areas also lie ahead remains to be seen.

‚ÄčFor further information on this topic please contact Rebecca Jobling at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.