16th July 2009       


 Issue No.  2009/15




For years employers have relied upon the well known MED3 Doctor’s Certificate as evidence of the employee’s inability to attend work to carry out their duties due to illness or injury.  The Government intends to change this and introduce a “Statement of Fitness to Work” or “Fit Note”.
It is estimated that the British economy loses around £13 billion a year due to sickness absence, with an estimated 172 million working days lost annually. Research has demonstrated that being in work has a beneficial affect on employee health, whereas the opposite can be said about them being out of work.  This is especially the case where mental well-being is concerned.
The Government is currently consulting on the new “Statement of Fitness to Work” which should roll-out across Great Britain in the Spring of 2010. 
 “Sick notes” issued by GPs are sometimes inadequate and unhelpful. According to the Government, the purpose of the new “Fit Note” is to encourage people to stay in work (or get back to work), and at the same time encourage employers to provide a more supportive work environment for those with physical and/or mental health issues. The new system is intended to shift the focus from what an employee ‘can’t do’ to what they ‘can do’ and as a consequence reduce the damaging effects of absence to both workers and their employers.
The Changes
The new “fit notes” will be computer-generated in GPs surgeries, replacing the current hand written version, so at least we will be able to read them.
GPs will still be able to indicate whether or not a person is fit for work, BUT they will also be able to designate that a person “May be fit for some work now”. Doctors will indicate whether their patient might benefit from common types of workplace or job role changes and could make recommendations such as:                          
  • A phased return to work.
  • Alteration of working hours.
  • Amended duties.
  • Modifications to the workplace to accommodate an employee’s health problems.
When making “May be fit for some work now” statements, it is envisaged that the doctor will also provide general details of the functional effect of that individual’s condition. For example, where the patient has moderate lower back pain, a doctor may suggest that they will be unable to lift heavy objects and should be given the opportunity to change position or take breaks regularly. Just how an employer should accommodate this whilst not, at the same time, increasing its exposure to Personal Injury claims if the employee further exacerbates the injury is not explained.  Most employers will, we are sure, take the cautious approach and decide they cannot take the risk.
It is recognised that most of the medical professionals who issue Statements on a regular basis are not experts in occupational health and employers may not receive anything more than generic advice.  They may then need to arrange specific occupational medicals and who will pay for this? – the employer!
If the cause of the Employee’s condition is work related (e.g. work related stress), ignoring a doctor’s recommendation could be detrimental to the defence of any subsequent Personal Injury claim brought against the Employer.
Some Clarity
The good news is that Employers will not be bound to implement recommendations by a doctor as there will be circumstances when an appropriate change cannot be agreed or made available in the workplace. In these circumstances, the ‘May be fit for some work now’ statements will be considered as evidence that the patient should refrain from work for sick pay purposes, i.e. does the job of the existing sick note.
Some Uncertainties
If an employer does not allow an employee to return to work in accordance with the GP’s recommendation, or acts unreasonably in considering the doctor’s recommendations, the employee may try and argue that the employer is fundamentally breaching their contract of employment.  This could see the employee resigning and making a constructive unfair dismissal claim: when defending this, the employer would have to demonstrate why the Doctor’s recommendation could not be accommodated.
Paralleling this, the employer’s current obligations under the Disability Discrimination Act will remain in tact.
The consultation on “Reforming the Medical Certificate” can be found at http://www.dwp.gov.uk/consultations/2009/ which includes the details required if you wish to respond to the consultation with your views. The consultation period closes on 19th August 2009.
Conclusion: more headaches for employers but don’t worry, “you may be fit to do some other work”!! 
We will keep you posted on this as it develops.




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