The New 'Fit Note' Regulations
Since April 2010 the old system of getting a 'sick note' from your GP has been replaced by GP 'fit notes '. These new electronic fit notes replace the old paper system in which the doctor states briefly the person's health condition and how long he or she should be away from work. As such it was little more than documentary evidence to support payment of Statutory Sick Pay or other benefits and was criticised as doing nothing to encourage a prompt return to work with possible adjustments to the work undertaken. The new fit notes are much more and very different.
When issuing s fit note the GP is required under the regulations to certify either that the person is not fit for any work or that he may be fit for some work taking into account medical advice which is given on the note.
If the GP certifies that the person is fit for work there are four more boxes which must be ticked. These will be for a phased return to work, different hours or duties, or adaption to the workplace. The new fit notes unlike the old 'sickies' can only provide for up to 3 months at a time rather than what was six months. However after six months of sickness the GP can sign a person off for an indefinite period. When the fit note provides that a person is fit to return to work, but only with reduced hours, the employer is entitled to decide the rate of pay to be paid. Recommendations in the fit note that a person is fit to return to work is not binding on an employer but would be ignored at their peril. Similarly an employer should not ignore recommendations for adaption to the workplace or other steps to allow a return to work. To do so could result in breaches of the Disability Discrimination Act.
Under the Act an employer may not discriminate on the basis of 'physical or mental impairment which have a substantial and long-term effect on the ability to carry out normal activities '. Furthermore under the Act an employer has a duty to make reasonable adjustments to the workplace, practices and procedures, in order that a disabled person might work. An employee may therefore well argue that a refusal to allow a return to work is disability discrimination.
An indefinite "sign off" can accordingly be a poisoned chalice for an employee. In Unfair Dismissal cases the test of whether a dismissal for ill health was fair is whether the employer could be expected to wait any longer and if so how much longer?
If a person is indefinitely signed off it might allow an employer to say that he could not wait forever for a return to work. After a period of six months absence there will come a point when it is reasonable to dismiss an employee for ill health if there is no indication of when there will be a return to work. If after being signed off indefinitely a person is unable to assure the employer of the likelihood of being able to return to work a tribunal is likely to find that a dismissal was justified.
Both employer and employee should therefore remember that the new fit note is a much more important document than under the old system.
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