Fit note: Fit for purpose?

By Jonathan Whittaker, Partner, SAS Daniels

On 6 April 2010 the UK ‘sick note’ regime became a thing of the past, to be replaced by a new form, entitled the Statement of Fitness for Work. The sick note, which was previously written by a GP, only had the option of two choices: the employee was either fit for work or unfit for work.

The new system, in the words of the advice which has been issued by the government, is designed to do two things:

1. to encourage both the GP and the employee to look at the challenges that currently prevent the employee from returning to work; and

2. to prompt discussion between the employee and the employer, in the knowledge that the GP is saying that the employee may be able to return to work if the employer can help the employee to overcome certain hurdles.

The new system entitles the GP to sign to say that the employee “may be fit for work taking account of the following advice”. It is important to note the use of the word “may” and the word “advice”. The information given by the GP on the fit note is not binding – it is only advice, a suggestion, a proposal. As was the case with sick notes, an employee will not be required to visit a GP until after the seventh day of absence. There is therefore no change to the existing timetable. The government has undertaken a lengthy process of consultation to arrive at this change, which it believes will also be a fundamental change. However, will it deliver what it has promised?

The Fitness for Work statement is obviously designed to get employees back into the work environment, but it may not make any difference to those employees who have become addicted to time off work due to illness. It could even lead to long-established doctor-patient relationships being compromised.

There is no doubt that many employers will be able to provide names of employees who they believe have become comfortably accustomed to time off from work, and who are perfectly capable of demonstrating to their friendly neighbourhood GP that they are not fit for work.

Undoubtedly the vast majority of people deal with illness and injury very openly and honestly. Those employees who regularly visit their GP to describe a difficult-to-diagnose condition, or who have become their own medical expert during their period of absence, will perhaps be easily offended when their ability to work is questioned by their employer or GP.

In those circumstances, the likelihood of a GP saying that his patient is really fit for work if the patient in front of him insists she is not has to be in question. GPs will undoubtedly argue that they will remain impartial, but is that necessarily going to be the case, especially when they have been the patient’s doctor for many years and have perhaps come to view them as being more susceptible to illness than most? There is also the added complication that GPs will not have any discussion with employers before filling out fit notes. This means that a GP may have little understanding of the potential roles available to an employee, which will make it much more difficult for the GP to be able to suggest alternatives.

Fit notes will never replace an experienced occupational health report. There is nothing at all in the new system to prevent the employer getting a more specialist report. After all, occupational health specialists have a much wider experience of advising employers on the ways in which an employee can be encouraged to return to work. The new fit note only gives GPs the opportunity to comment on four suggested alternatives. It is not, therefore, a very lengthy checklist. There is a real possibility that a GP will consider nothing more than the four alternatives that have been placed in front of him by the government, whereas an occupational health specialist would consider every possible adjustment
and opportunity.

Employers should take the opportunity to discuss GP suggestions in person with employees. Employers should, however, remember that the comments and suggestions made by GPs are nothing more than ‘advice’. The employer will obviously have a much more detailed knowledge of the employee’s work and workplace. Ultimately, if after discussing all the circumstances with the employee, the employer does not believe that the suggestions made by the GP can be implemented, there is no penalty that can be imposed on the employer.