Get fighting fit for work

For many years employees who had been off sick for more than seven days would have had to provide their employers with evidence of their incapacity for work in order to receive statutory sick pay (‘SSP’).

This evidence usually took the form of a doctor’s certificate, sick note or medical statement, which would say, in the doctor’s opinion, for how long an employee should refrain from work.

Since 6 April, however, the law relating to certification of sickness has changed, the main alteration being that doctors will no longer issue employees with ‘sick notes’ but with “fit notes.”

As the name suggests, the change is essentially one of emphasis, as the new notes concentrate on what an employee is able to do, with the doctor providing an opinion of an employee’s fitness for work taking into account their condition, rather than on what they cannot do, as used to be the case.

Part of the reasoning behind the change is an acknowledgement that work can provide employees with health benefits, and that an employee’s incapacity may, in some cases, be compounded by not being at work. Clearly, there are other situations where it is impossible or inadvisable for employees to return to work, and the new fit note still provides that a doctor may advise an employee that “you are not fit for work.”

For employees who are able to return to work, the new forms do not, however, go so far as to state categorically that an employee is “fit for work”, but rather that “you may be fit for work taking account of the following advice.”

The “following advice” includes a statement that “if available, and with your employer’s agreement, you may benefit from:” followed by the options of ‘a phased return to work,’ ‘amended duties,’ ‘altered hours’ and/or ‘workplace adaptations.’ The doctor may also provide written comments with a more detailed view of the kind of things that may assist.

The effect of these options is to establish a new middle ground between saying that an employee is incapable of working and giving them an ‘all clear’ (although there is no need for an employee to be signed back to work). The changes are not intended to get people back to work before they are ready, but to remove the challenges to them returning.

This means that a doctor can say that an employee is still unwell, but can return to work provided certain conditions are met, or modifications to their work are made; employers will then have to consider what can or should be done to assist an employee’s return to work.

If an employer receives a “may be fit for work statement,” the first step is to discuss the doctor’s advice with the employee and consider how it may affect the employee’s job and workplace. Employers are not restricted to considering the suggestions that might be made in the form, however, and should think about any other action that could help an employee return to work.

If, having discussed it with the employee, a return to work is possible, then a return date can be agreed, along with any suitable amendments, and a date on which to review how those amendments are working in practice.

If, having considered the advice and discussed the situation with the employee, an employer concludes that a return to work is not possible, then a review date or a later return date will need to be agreed with the employee and the employee will continue to receive contractual and/or SSP in the normal way.

Previously, employers receiving a sick note could feel as if they were powerless in the event of an employee’s incapacity; one of the aims of the new fit note is to introduce an element of consultation, which should provide employers with greater flexibility and better information to assist with managing sickness absence.

ProfileNeil Emery joined Whitehead Monckton in 2009 and specialises in employment law. His experience covers all aspects of contentious and non-contentious employment work. Before joining Whitehead Monckton, Neil spent several years at a City law firm. Born in Kent, where he has lived for most of his life, Neil is a keen mountain walker, photographer and filmmaker.