The Prime Minister recently announced a raft of changes, to be implemented in the next parliament, aimed at reducing the number of people who are economically inactive due to illness. The announcements included changes to the benefit system for those who have long-term conditions, but the aspect which will be of interest to employers, unions and employees is changes to the use of fit notes in employment.
Fit Notes – A Background
Fit notes were introduced in 2010, replacing what was then called a sick note. Their legal function is a way for an employee to provide medical evidence when claiming Statutory Sick Pay (“SSP”). The (now amended) Statutory Sick Pay (Medical Evidence) Regulations 1985 set out their form. This medical evidence is a requirement for the employee to receive SSP, which is currently £116.75 per week.
Fit notes issued in the first six months of incapacity can’t exceed three months in duration, but beyond that initial period their duration is unlimited. The fit note will either declare that the employee is “not fit for work” or “maybe fit for work”, provided certain adjustments are made. Since July 2022, fit notes can be signed by registered nurses, occupational therapists, pharmacists, physiotherapists and doctors.
The government has initiated trials of occupational health services which aim to better integrate employment and health support for people with disabilities and other health conditions to start and stay in work. The Prime Minister’s recent announcement signalled an intention to expand and build on these trials with a dedicated service of professionals who would issue the fit notes, rather than doctors.
“Maybe Fit For Work”
Fit notes currently contain the facility for the healthcare professional to suggest ways for the individual to return to work: a phased return to work; altered hours; amended duties; and/or workplace adaptations. The professional can also provide further advice or information to aid the discussion between the employer and employee when organising their return to work.
If the employer or employee cannot agree with these conditions or suggestions, the employee is to be treated as “not fit for work” and therefore will be eligible for SSP. As the law currently stands, employers need to be careful when managing the return to work of the employees designated under this category. There may be risks associated with their Employer’s Liability Insurance or inadvertently putting the employee or others at risk, in addition to the costs of any adjustments.
If these changes are implemented, it is anticipated that employers will be required to implement certain reasonable adjustments, recommended by the new occupational health specialists, in order to facilitate the return to work. It is unclear at this stage how this scheme of reasonable adjustments will interact with existing obligations under disability legislation. It may be that the government intends to extend this regime to cover conditions which do not currently meet the definition of disability, including one-off surgeries, accidents and low impact conditions, and how employers will balance the competing needs of various employees.
Considerations for employers
While these specific changes are contingent on a new Conservative government, data from the Office of National Statistics does show that 850,000 more working-age adults say long-term ill health is keeping them out of work, than in February 2020. Given this, it is possible that whoever forms the next government will want to make changes to the fit note system. Employers should keep an eye on the issue and be ready to adapt their processes and policies.