"Fit" for work?

Willans have been following the progress of the imminent new ‘fit notes’ scheme. Significantly, the main priority appears to be the interests of employees who are off sick. Scant account seems to have been taken of the difficulties of running small businesses in the face of frequent absenteeism and the ever-present spectre of claims under the Disability Discrimination Act.

The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 are still on target to come into force on 6 April 2010 despite concerns that there is not sufficient time for affected parties to familiarise themselves with the new notes.

The new ‘fit note’ will list common changes which could be made to an employee’s work role or environment to enable them to return to work. The doctor can make additional comments if he considers another option to be more appropriate.

The old ‘fit for work’ option becomes ‘you may be fit for work taking account of the following advice’. This is intended to reflect the fact that it is often not the doctor but the employer, in consultation with the employee, who is best placed to decide whether it is possible to make changes to assist a return to work. The maximum duration of a medical statement reduces from six months to three months during the first six months of a health condition.

If the employer is unable to accommodate a suggested change or adjustment, there is no requirement for a revised statement: the existing one will serve as evidence that the employee’s health condition prevents him from carrying out his job.

The government has promised that adequate advice and guidance for individuals, employers and health care professionals will be available shortly and there are plans for a campaign to raise awareness of the changes. We foresee that the scheme could simply add another layer of difficulty for employers when considering issues arising from absent staff and potential claims of ‘disability’.

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