Background

In 2007 the Government commissioned a review into the health of Britain's working population. In particular, the Government felt that the current system focuses on the negative - what a person can't do. It does not encourage any dialogue between GPs and patients, or between employees and their employers, about getting sick employees back into work.

Much is made by the Government of the benefits to long-term health, both physical and mental, of being in work. A change to the sick note system was felt to be a way of changing society's views on sickness absence. It would also have the financial advantages of greater productivity within businesses, more revenue in taxes and less pressure on state benefits.

So, what's the final position?

Under the new 'The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (amendment) Regulations 2010', when issuing sickness certificates, GPs will now have two options. Firstly, the GP can state that the employee is 'not fit for work' - i.e. not fit for any work at all. Simple.

Alternatively the GP can certify that the employee 'may be fit for work taking account of the following advice...'. GPs then have four tick boxes which they can use to advise if an employee will benefit from 'a phased return to work', 'altered hours', 'amended duties' or 'workplace adaptations'. Such suggested adjustments are only 'if available, and with your employer's agreement'. The note also gives GPs the opportunity to add comments to supplement the tick boxes.

The new fit notes can be provided for a maximum duration of three months at a time (rather than the existing six months). However, once an employee has had six months' sickness absence, the GP can sign the employee off for 'an indefinite period' if he thinks it appropriate.

Fit notes will be available in electronic as well as written form.

The British Medical Association and the Royal College of General Practitioners are jointly preparing guidance for GPs on the use of the fit notes. Guidance for employers will also be produced in advance of 6 April 2010.

Has anything changed significantly since the first proposals?

The Government has decided not to include an option that the employee is 'fit for work'. It was felt it would be counter-productive and not necessary. It would send a message that employees can only return to work if positively certified as fit. This is counter to the more collaborative and flexible approach to sickness the Government wanted to encourage and would also tie up GP appointments with employees having to get 'fit for work' certificates.

The Government's response also refers to employers' concerns that they need 'fit for work' certificates to satisfy employer liability insurance. The Government assures us that the Association of British Insurers has confirmed that this is not the case, although we would advise prudent employers to check with their insurance provider for complete peace of mind on this.

The originally proposed 'may be fit for some work' phrase has been replaced by the "may be fit for work taking account of the following advice". This is to acknowledge that it is not the doctor, but the employer in consultation with the employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate return to work.

Issues for employers to consider

How reliable will the fit notes be?

In the consultation, consideration was given to whether the fit note should allow for a recommendation that the employee be referred to occupational health (OH). However, this has not been adopted as there was concern that GPs would use it as the easy default option.

While this may be right, the danger is that GPs will use the 'not fit for work' option as the default instead. GPs will have to discuss the nature of the employment with the employee. As the GP has no actual knowledge of that workplace, are they not more likely to err on the safe side of caution and certify as 'not fit to work' if that is the clear message the employee is giving?

Cost

The Government's explanatory memo on the Regulations is at pains to point out that any costs to the employer are likely to be low and in any event will be voluntary as it will not be mandatory for the employer to make any of the changes suggested by the GP.

However, the Government expects that 'rational employers will take action where the benefits of doing so outweigh the costs'. It will remain to be seen what employment tribunals makes of employers' approach to this. Although not mandatory under these Regulations, will tribunals decide to treat the recommendations more strictly?

Employees returning on reduced hours

Where an employee returns to work on reduced hours it is for the employer to determine the rate at which it will pay the employee.

In the Government's response it refers to an employee coming back on 50% hours being paid full time. This is one scenario the Government used to calculate the costs of the scheme. However, the Government acknowledges that some employers may reduce the salary to reflect the hours actually worked.

Beyond this, nothing is said about how this type of arrangement will be expected to work in practice. The guidance may clarify, but otherwise, it will be at the employer's discretion.

Subject of course to any duty to make reasonable adjustments under the Disability Discrimination Act 1995 (DDA), it would probably be better to pay the employee only for the hours they do. To pay them full time for part-time hours would surely be counterproductive as it would do nothing to encourage employees back to work full time and this would be contrary to the Government's basic objective.

Disciplinary issues

Just as making changes to working conditions is not mandatory for employers, so it is also not mandatory that employees engage in the return to work process.

So, take the situation of a GP who advises that an employee can return to work on a phased basis. What if the employee either does not attend a meeting to discuss such a return or does not agree with the return arrangement suggested? There is no suggestion that Statutory Sick Pay will cease for instance.

Presumably the employer would be justified in commencing a disciplinary process as the employee has failed to comply with a reasonable instruction. But as with any failure to attend a meeting through sickness absence, well advised employers often have to jump through a number of hoops in order to move such a process forward.

Conflicts between GP advice and Occupational Health (OH) advice

The new system does not prevent employers referring employees to OH for further assessment. However, what if the advice of OH conflicts with that of the GP? Which way does the employer go? The Government's response emphasises that the onus is on the employer to make any final decisions about an employee's return to work. Provided OH has actively considered the GP's advice and can give specific reasons for disagreeing with the GP, will employers be justified in relying on what OH says?

Disability discrimination

Employers' duties under the DDA will clearly trump the fact that employers are not required to implement GP's advice. Conversely, if an employer does not consider the advice of a GP while considering its duty to make reasonable adjustments, then it is likely to fall foul of the DDA.

And will the new fit notes prove to be successful?

Employers will no doubt welcome the attempt to shift attitudes from 'I'm sick and can't work' to 'I'm sick but that shouldn't stop me from doing some work'.

However the success of the scheme will very much depend on how well GPs are trained and how well they complete the forms. GPs need to understand the impact sickness absence has on a business and the management time incurred in dealing with it. Otherwise, there is a danger that a GP will take what the employee says at face value, without making his/her own judgment. This will significantly dilute the objective of the new fit notes.

Assuming GPs do wholeheartedly engage with the new fit notes, the Government believes it could save the economy £41 - £137 million per annum. The majority of this is from increased output by employees who return to work earlier than they otherwise would have. At times of economic downturn such a saving is to be welcomed. We turn now to GPs to help make this work.