Employment Law Update (June 2009)

New "Fit Note" proposals will mean more headaches for employers

The Government has outlined its proposals to replace the current "Sick Note" with a "Fit note". The proposal is designed to reduce sickness absence and to have a clearer focus on what employees can do, rather than what they can't.

The new "Fit Note" will come into effect from April 2010 and will replace the current MED3 sick note. In addition to the current categories of "Fit to work" and "Not fit to work", there will be an additional category "May be fit for some work now". The employee's GP will be required to tick one of the three boxes.  If the GP ticks "May be fit for some work now", he or she will also be required to make some recommendations, again from a "tick box" list. These recommendations could include:

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

Where an employee receives a "May be fit for some work now" note, it will be up to the employer and the employee to agree on how a return to work can be arranged. It is proposed that the employee cannot be made to return to work, nor can the employer be forced to accept the employee back if suitable arrangements cannot be agreed. Where agreement cannot be reached, the employee will remain on sick leave as now.

What are the implications for employers?

Because employers will not be forced to reach agreement on arrangements, it may appear at first sight that receipt of a "Fit Note" should not be too much of a burden for employers.

However, a "May be fit for some work now" recommendation is a clear indication that the GP feels arrangements for a return to work should be made if possible. This raises the possibility that the employee might have a disability as defined by the Disability Discrimination Act 1995 (the DDA). The DDA makes it clear that, in respect of workers with a disability, employers have a positive duty to make "reasonable adjustments" to the work or to the workplace to allow the employee to resume work.

So, where a "May be fit for some work now" recommendation is made, employers should always seek advice on whether the employee might have a "disability" as defined by the DDA before taking any action.

Another problem is that a "May be fit for some work now" recommendation puts the ball in the employer's court to establish whether the employee can, in reality, return to work and what work he or she can reasonably be expected to do. Whether or not the GP recommends an "occupational health referral", employers would be well advised to seek the assistance of an occupational health specialist in advising how a return to work can be arranged and on what basis.

How can Mentor help?

Mentor's Telephone Advice Service can help with enquiries about what to do following receipt of a "May be fit for some work now" recommendation, and you should always seek advice before taking any action if you receive such a form.

Mentor also offers Occupational Health services through our partner, AXA ICAS, either on a subscription or a "pay as you go" basis. Our consultants will be happy to discuss how we can meet your requirements.