Fit for purpose

A new regime for dealing with ill-health in the workplace will come into force next month, but the introduction of fit notes is set to cause a great deal of uncertainty. Sarah James explains.

It is estimated that the cost to the British economy of ill-health in terms of working days lost is over £100 billion each year. However, evidence suggests that, if provided with appropriate support, more than 90% of people with common health conditions could be helped back to work.

With a view to reducing sickness absence, therefore, a new system of “fit notes” will be introduced with effect from 6 April 2010 to replace the current sick note system. The new fit notes will retain the current “fit to work” category and will replace the “refrain from work” category with a “not fit to work” category. However, the core of the proposals is the introduction of a third category, “may be fit for some work now”; the idea being to focus on what the employee can do rather than what he cannot do.

Where an individual “may be fit for some work now”, the doctor will be required to provide general details of how the medical condition impacts on them. However, employers should expect generic advice only. The 2009 consultation paper on the draft regulations itself recognises that most of the medical professionals who issue statements on a regular basis are not experts in occupational health.

Where an individual “may be fit for some work now”, doctors will also be able to indicate how the individual may benefit from changes to the workplace or the job role itself. Four possible “tick box” options are available:

• A phased return to work
• Altered hours
• Amended duties
• Workplace adaptations

This is a non-exhaustive list, and where a doctor considers that another option to be more appropriate, they will be able to state this in a “comments” box on the fit note.

The consultation document states that the employer will not be bound to implement suggestions by a doctor for workplace changes which would facilitate a return to work. Instead, changes will be provided at the discretion of employers but will require the agreement of the employee.

Causes for concern

Despite the benefits which it is hoped the new fit notes will bring, they have been subject to criticism. Concerns have been expressed about how beneficial the fit note will actually be in practice. Commentators have cited doctors’ lack of familiarity with the nature and demands of individuals’ roles which, they believe, could lead to a vague or misleading diagnosis, or employees having unrealistic expectations of the process. There is a belief that considerable training and a culture change will be needed for the new scheme to be effective. In addition, concern has been expressed about a potential loophole under which doctors may be able to refrain from giving a true diagnosis if they feel a precise diagnosis would be prejudicial to the patient’s well-being or to the patient’s position with their employer; if exercised, this would appear to be contrary to the stated aims of the fit note.

There are also concerns about the additional burdens which may be placed upon employers. It is not clear how far employers must go on receipt of a “may be fit for some work now” certificate; whether there is a positive duty to contact the employee or whether an employer can decide not to take any action until the employee is fit to return in his usual capacity.

Arguably, employers will have additional administrative burdens as a result of the fit notes. For instance, where doctors’ recommendations are implemented, employers will need to ensure that employees do not get lost in the system and, for example, remain on amended duties or hours longer than initially anticipated. Employees may also seek to raise grievances where recommendations are not implemented which will need to be addressed.

Furthermore, employers would be advised to give careful consideration to the recommendations, if only for the purposes of defending a claim that any subsequent dismissal on grounds of capability could have been avoided had the recommendations been implemented.

Strained relations

One of the potential impacts of the fit note is the impact on employee relations. Whilst there may be no obligation on employers to implement recommendations, a refusal could be detrimental to good employee relations, particularly where the reason for sick leave is a non-medical dispute at work, such as alleged bullying or harassment, or the employee has an ongoing grievance. Further, would a refusal amount to a breach of the implied term of mutual trust and confidence? This is unanswered at this time.

Conversely, what if the doctor determines that someone is fit to carry out amended duties but the employee refuses? According to the consultation paper, if there is a dispute between the parties and an appropriate change cannot be agreed, the “may be fit for some work now” note should be interpreted as evidence that the patient should refrain from work for sick pay purposes.

As a result, there is the potential for an employee to refuse to agree a change, either because he does not want to return at all or because the employer is not prepared to grant the change he wants. This may be particularly prevalent where a return to work would cut across sick pay provisions; there is no incentive for an employee to return if it impacts on his sick pay entitlement. Will employers start disciplining employees in such circumstances?

Conflict with existing legislation

A concern expressed by many is that it is unclear at this stage how the new regime will dovetail (if at all) with existing legislation; for example, the obligations on employers to make reasonable adjustments for disabled employees.

The new provisions will not negate an employer’s obligation under the Disability Discrimination Act 1995 to make reasonable adjustments. However, it remains to be seen whether the employer’s existing duty will be adapted and/or extended to cover all employees who may be fit for some work now or whether we will be left with two similar (but not identical) regimes running in parallel with one another; one covering disabled employees, the other covering non-disabled employees.

Also, queries have been raised in respect of the interaction with requests for flexible working. In the event that an employee’s previous request for flexible working has been rejected, how is the employer to deal with a fit note which indicates that a phased return would be appropriate? Should the employer ignore the doctor’s recommendation in case implementing it prejudices the employer’s position in respect of flexible working requests?

It is clear that there is still considerable uncertainty about how the new regime will operate in practice and what will be the implications. It was hoped that the government’s response to the consultation, which was published recently, would address some of the remaining questions and concerns, and the government has promised that further guidance will now be issued for GPs, employers and individuals, but there is still criticism that this has been left so late, with only a month and a half to go before the system is implemented.

A review of the new system will be carried out after 12 months.

Sarah James is a lawyer in the employment team at Dickinson Dees (www.dickinsondees.com).