February 01, 2010
The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 (the “Regulations” for short) are intended to come into force from April 2010.
The Government has consulted with a number of professionals about the contents of the Regulations, and has provided a report explaining why certain changes have been made. “Fit Notes” will now replace “Sick Notes” and, besides the name change, will adopt some changes to the information that doctors provide when assessing whether an employee can return to work.
Sick Notes Generally
Sick notes are important to the employer-employee relationship because they provide evidence from a doctor of the employee’s sickness, and guidance on how long they are likely to be off work.
The current forms, “Sick Notes”, give doctors 3 options:
- Fit for work
- May be fit for some work
- Not fit for work
Key Changes
Suggesting changes to working environment
There will now be a space for doctors to suggest changes that can be made to the workplace which may assist the employee returning to work. This should provide greater clarity to employers about what amendments can be made to working conditions, and also encourage more communication between the parties in respect of how this can be done.
Removal of ‘fit for work’ option
There is no longer an option for doctors to state that employees are ‘fit for work’. This has been removed because it is considered that doctors are not fully aware of the job roles and environments, and therefore do not know of the risks involved with people retuning to work. It is also believed that removing the option is more likely to make employees pro-actively try to return to work without waiting for the doctor to approve it.
Some comments to the Government from professionals stated that unnecessary doctor appointments are made simply to get a ‘fit for work’ statement, and this time should be free for patients that require medical attention. Also, some employers stated that most of their employees do not obtain a ‘fit for work’ statement before returning to work anyway.
This could however cause problems for employers who consider that an employee may be seeking to come back to work before they are fit to do so.
Amendment to ‘may be fit for some work’
The option ‘may be fit for some work’ is to be replaced by the wording ‘you may be fit for work taking account of the following advice’, e.g. no lifting of anything weighing more than a certain amount.
On receipt of such a sick note the employer would be expected to consider whether such changes could be made to the working environment.
Reduction of maximum duration of statements
During the initial 6 months of an illness, the maximum duration of a medical statement has been reduced from 6 months to 3 months.
Although it was noted that some illnesses do require a medical statement that will last in excess of 6 months, the report stated that these long periods of absence are contrary to the target to help employees return to work quicker. Some illnesses may actually improve beyond expectations during the first 6 months.
Employers should pay attention to the doctor’s orders
Notwithstanding the above changes to sick notes, employers should bear in mind that if the employee has a disability, they are under a duty to consider making reasonable adjustments or else risk being found to have discriminated.
The case of London Borough of Hillingdon -v- Morgan EAT 1493/98 highlighted the importance of taking reasonable adjustments into consideration, particularly when suggested by a doctor. Ms Morgan suffered from ME and her doctor stated that she could return to work if she was slowly eased into it in a part-time role. Her employer refused to let her work part-time and she returned on her usual hours, and as a result she became stressed and resigned.
Ms Morgan was successful in her discrimination claim, partly because the Employment Appeal Tribunal held that an employer of such a large size should have had room for a part-time role.
An employee who does not have a disability may also seek to claim that a failure to follow a doctor’s recommendation, where it is practical to do so, may amount to a breach of the implied term of trust and confidence.
HR Watch – Issue 62 - February 2010
