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Fit notes are set to replace sick notes next month despite concerns that this will not allow time for small businesses to familiarise themselves with the new system. Neeta Laing, head of employment law at Lewis Hymanson Small explains how it will work.

Fit notes give GPs the option to declare a patient able to work, subject to temporary changes being made to the work environment. The new rules are intended to reduce Britain’s huge incapacity benefits bill by helping people with health conditions make an early, phased return to work with the aim of reducing the cost of sick leave. If a patient is considered fit, their doctor is obliged to recommend a course of action for a return to work, which can cover altered hours and adaptations to the work environment.

Employers will be given a list of changes, which could be made to an employee’s work environment or job role to help facilitate their return to work. If a doctor feels that a new role would be more appropriate, they can state this in a comments section.

New notes

There will no longer be a ‘fit for work’ option as doctors were felt not to have the knowledge about an individual’s role and the risks involved. This will be replaced with ‘you may be fit for work taking account of the following advice’. This means that it has been decided that you, as the employer are best placed to make the decision in conjunction with an employee as to whether you can accommodate the changes to enable a return to work. If you are unable to facilitate a change or adjustment, then you will not need a revised statement, the existing statement is evidence that the employee has a condition that prevents them from carrying out the role.

The advice written on the medical statement is intended to be used as the beginning of your discussions with an employee. If you are unsure or need more advice, you can contact the GP to ask for further details but this could incur a cost and busy GPs may be unable to respond immediately to any enquiries.

The true diagnosis

Employers should be aware that the rules allow GPs to legally refrain from giving a true diagnosis of a patient if they feel it is not in their patient's interest to do so. One of these times could be where a doctor may believe it would harm their patient if the real reason were disclosed to the patient's employer. This loophole in the system could set doctors and employers against each other when they should be working together. If the true reason is legally allowed to be withheld, then the system falls apart.
There is also concern amongst business leaders that there may be disputes as to what is deemed suitable work. Businesses should speak to an occupational health professional to get advice as to what adjustments ought to be made.

Time will tell how the system will work but it is clear that more training and a change in culture will be needed for GPs to ensure fit notes are beneficial to the patient and the employer. The system will only work if employers can be confident in what the doctors are telling them. If an employer is in any doubt about how to treat a staff member who has been off work with sickness, they should take legal advice.

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