Background and thinking behind the change

The Government is proposing to introduce a new fit note to replace the current sick note with effect from April 2010. The sick note has been used largely unchanged in its current form since the NHS began in 1948 and is the usual method by which employees provide employers of evidence of their sickness absence.

The new fit note is designed to shift the focus from the employee’s incapacity, i.e. what the employee cannot do, to what the employee can still do in spite of their health condition. For GPs, it is no longer just a question of whether the employee is fit or not to return to work, but whether the employee may be fit to do some work now.

The introduction of the fit note was one of a number of measures recommended by Dame Carol Black, National Director for Health and Work, in her 2008 report, Working for a healthier tomorrow; Review of the health of Britain’s working age population, in recognition of the changing environment in which individuals work, e.g. work is generally considered safer and less physically demanding; and employers are more flexible in terms of making changes to the working environment. Trials of the new form of note have already taken place with over 500 GPs.

The current form of sick note is prescribed in regulations. Consultation on amending these regulations to implement the new fit note runs for 12 weeks ending on 19 August 2009.

The Government claims that research has clearly demonstrated that work is often beneficial to health, while inactivity can worsen physical and mental well-being, as well as increasing the risk of social exclusion and poverty. It is also intended that the new form of note will allow provision of a greater level of support for those employees returning to work, as their employer should have a better understanding of their needs. According to the consultation paper there are also obvious economic benefits to reducing the number of employees on long-term sick leave in the UK, as sickness absence currently costs UK business around £13 billion every year.

The proposed regulations (The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) Amendment Regulations 2010) are also intended to simplify the process for GPs by allowing them to issue computer-generated as well as handwritten statements, and by reducing the different types of medical statements in use.

The consultation comes at a time when unemployment figures are on the up; employers are looking at those on long-term sick as part of their overall management of employment costs in the recession and employees absent through sickness may be looking for a route back into the workplace.

‘May be fit for some work now’

The sick note currently offers GPs two options: (i) to confirm that the individual does not need to refrain for work; or (ii) to confirm that the individual should refrain from work and for how long.

With the fit note, the GP can advise that that individual is: (i) fit for work; (ii) not fit for work; or (iii) may be fit for some work now. Under the proposed regulations, GPs will be required to set out their comments “including functional effects of the condition”. The proposed regulations provide that, “Where a doctor considers that a patient may be fit for some work the doctor shall state the reasons for that advice and whether this is considered appropriate, the arrangements which the patient might make, with their employer’s agreement, to return to work.”

The GP may also comment on whether the individual would benefit from: (i) a phased return to work; (ii) altered hours; (iii) amended duties; or (iv) workplace adaptations. One of the questions under consultation is whether listing these common types of changes and whether including an option to suggest an occupational health referral would be helpful.

Is the idea a good one?

For employers and employees alike, the answer must be yes. The old style sick note is often a source of frustration for employers as it does not assist with ‘mapping’ medical information into the employment arena. It often contains very little helpful detail for employers and does not lend itself to an early return to work discussion. The new note shifts the emphasis by confirming that an employee may be fit for some work now and giving details of what an employee can do. Employers can be more confident in approaching employees and in their discussions with them.

Impact of the proposed change

The impact assessment annexed to the consultation paper states that an early return to work will lead to savings by employers and that “overall a net benefit is expected for employers”. Although the assessment notes that there may be additional costs if workplace adjustments are needed, it states that employers will benefit from not paying sick pay, a reduction in turnover costs, the retention of skills base, avoidance of re-training costs and an increase in revenue/profits from any additional output produced.

A finding of ‘may be fit for some work now’ will shift the emphasis from the doctor patient relationship back to the employer employee relationship. 583 volunteer GPs considered how they would have completed the fit note for three modelled patient scenarios. While some patients would have moved from ‘fit’ to ‘may be fit for some work now’, a far larger group moved from ‘unfit’ to ‘may be fit for some work now’. Employers will be encouraged to consider whether the employee’s condition can be accommodated at work, which may involve changes to the work place and/or work patterns.

Under the current system, one of the difficulties is keeping in touch with employees during the sickness absence. Lack of contact can make the employee disengaged with the workplace and therefore make it more difficult for an employee to return to work. A finding of ‘may be fit for some work now’ which leads to the employee coming back to work in some capacity, keeps the employer employee relationship current and makes it easier for the employer to monitor and understand first hand the employee’s condition.

The fit note is designed to inform a discussion between the employer and employee as to how to facilitate the employee’s return to work. The consultation paper provides that, “Changes will be provided at the discretion of the employers and with the agreement of the employee” (paragraph 34). So, although it is not intended to impose concrete obligations on an employer, an employer will need to consider carefully what the GP recommends the employee can do if they are fit for some work. It may be easier for an employee to claim full pay if their absence is caused by an employer’s failure to make reasonable adjustments that would have allowed them to return to work if the fit note specifies what action the employer could take to allow a return to work and the employer does not take this action.

Conclusion

Managing sickness absence is always a thorny issue, never more so than now given the cost pressures on employers in the current climate. Employers are familiar with the sensitivities around management of sickness absence but are often hampered by lack of detail or clarity from the old-style sick note, leading often to lengthy sickness absence before there is an active dialogue with the member of staff. Under the old-style sick note, a phased return might only be considered when the employee is deemed fit for work - i.e. at the end of the absence. By deeming an employee fit for some work now, a phased return should be an option at an earlier stage.

To make a practical difference to employers and employees, the fit note needs to be meaningful. While GPs will be required to include functional effects of the condition, we imagine that many larger employers will arrange for an occupational health officer to meet with the employee to carry out an assessment of what the employee can and cannot do.

The move from sick to fit demonstrates the Government’s desire to encourage a broad shift towards encouraging employees with health conditions to continue to work to the extent they are able to rather than giving up on work all together. Employers will be expected to adapt accordingly (in the same way that they have had to do under the disability legislation) and modify the working environment where reasonable to incorporate the needs of employees with varying health conditions.