Background

Our Quarterly Bulletin from summer 2009 featured an article on the Government's proposal to introduce a new fit note to replace the current sick note with effect from 6 April 2010, "From 'sick notes' to 'fit notes' – effective management of sickness absence". Consultation on amending the regulations which prescribe the current form of sick note took place between 28 May 2009 and 31 August 2009. Last week, on 29 January 2010, the Government published "Reforming the Medical Statement" - its response to the consultation on the draft regulations on implementing the new fit notes (The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010).

The Government's response reiterates its thinking that the new fit note will have a net benefit not just for individuals and their employers, but for the economy as a whole. As a result of the consultation, changes have been made to the proposed fit note primarily to ensure that the emphasis is on the employer employee relationship rather than the doctor patient relationship, and the Government has given a commitment to publish specific guidance to individuals, employers and healthcare professionals.

The Government received 147 responses to its consultation document including from medical professionals, employers, employer representatives, HR professionals, unions, charity organisations and lawyers (a list of the respondents is provided at Annex A of the response). The response notes that the overall feedback from the respondents was broadly positive and supportive of the move to introduce the fit note, with the strongest supporters being amongst employer representative bodies such as the CBI, the Chartered Institute of Personnel and Development and the Federation of Small Businesses. We are told that a number of positive responses were also received from the British Medical Association, the Royal College of General Practitioners, MacMillan Cancer Support and the Multiple Sclerosis Society.

While acknowledging the need to reform sickness certification, perhaps unsurprisingly, the TUC and allied trade unions adopted a cautious approach, questioning the role of GPs in completing medical certificates and calling for the introduction of a national occupational health service.

The Government's response

The Government's response notes the following key conclusions:

  • Concerns were raised by some respondents that the benefits of the new fit note have been over-estimated as part of the impact assessment annexed to the consultation paper and that the study carried out was too limited. While making a number of improvements to the impact assessment, including looking at the impact of an increase in the average training time for GPs and a reduction in the numbers of individuals impacted by the change to generate a more conservative estimate, the Government has not moved from its stance that these changes have not affected the overall conclusions of the impact assessment and that the new fit note is still expected to result in a net benefit for individuals, employers, the Government and the economy as a whole.
  • The new fit note will list the common types of changes that employers can introduce to assist a return to work. In the current draft these are (i) a phased return to work; (ii) amended duties; (iii) altered hours; and (iv) workplace adaptations. Despite some concerns that doctors would not have the knowledge or understanding of their patient's job, the Government concludes that doctors do not need to have a comprehensive knowledge or understanding of the job and suggestions made by a doctor will be based on the patient's health condition rather than job-specific.
  • The list is non-exhaustive as it was felt that a comprehensive list would over complicate the process of completing the medical statement. The Government states that where a doctor considers another option more appropriate, they will have the opportunity to state this in the comments box on the fit note.
  • The Government views the list as a means of encouraging further dialogue not just between doctor and patient, but between employee and employer on the potential options that could facilitate a return to work.
  • The Government has decided against including an occupational health tick-box in the fit note as it does not want this to be viewed as an easy "default" option for GPs and therefore lead people to believe that the GP has not considered the measures that could be taken to assist in getting a patient back to work. This will no doubt be a welcome conclusion for small and medium size employers where the expense could have been prohibitive. However, the Government goes on to state that this does not prevent GPs indicating in the comments box that an occupational health referral would be beneficial. It will be interesting to see how often this comment is made by GPs and whether the Government's statement on the use of the comments box will be used as an effective means of introducing an occupational health tick-box.
  • The fit note will only has two options 'unfit for work' and 'may be fit for some work taking account of the following advice'. The italicised words were added to acknowledge that it is not doctors but employers, in consultation with their employees, who are best placed to make the decision as to whether they can accommodate any changes.
  • The Government decided to remove the 'fit for work' option from the fit note agreeing that doctors do not have the knowledge or expertise about an individual's job or the risks involved to determine whether an individual is fit for work. It is for employers to decide whether an individual is fit for work and for employers to carry out a risk assessment when an employee returns to work. While empowering individuals to decide when they are ready to return to work, it may be a difficult call for the employer where an employee is returning from long-term sickness absence. Larger employers are likely to adopt/continue with the practice of referring the individual to occupational health to assist them in assessing the risk involved.
  • A fit note issued during the first six months of a patient's health condition will last for a period of three and not six months as originally proposed.
  • GPs will be able to rely on medical reports that are more than one month old where they feel that they are relevant at the time of issuing the fit note.

Conclusion

Few employers will be sorry to witness the demise of the old style sick note which was often a source of frustration containing very little helpful information. By providing that employees "may be fit for some work taking account of the following advice" opens up the channels of communication between the employer and the employee – it being the lack of contact during periods of sickness together with perhaps a lack of understanding of the illness and its limits which lead to the current difficulties.

In response to concerns that it will be important to monitor and evaluate the outcomes following implementation, a Government evaluation of the new medical statement will be published in 2012/13. This evaluation will consider the impact on different regions and countries and on different illnesses and disabilities, as well as impact by gender, age and race.