Is the new sickness regime fit for purpose? Will it work to keep them at work?

May 26, 2010 8:39 am Published by

The Fit to Work regime which came into force on 6th April attempts to reduce the around £100 billion a year lost to work-related illness in the UK. The old, negative, sick note was permission to do no work at all, unless the employee was fit to return to 100% work. The new, positive, fit note aims to focus on what an employee can do while not 100% fit, with recommendations from the GP about what work can be done.

Focusing on the positive must be good if it allows for some work to be done rather than no work, particularly if the employee benefits from sick pay. As usual with legal changes, this one fits best in large employer settings but is imposed on us all. The fit note from the GP records an employee either ‘not fit to work’ or ‘may be fit to work taking account the following advice’. Based upon the GP advice, it allows work to be done which is effectively a temporary variation in the employee’s contract eg the type of work, hours, where it is done and methods of working. It all fits with the flexible working revolution.

The GP describes the effects of the illness and can suggest one of four possible solutions to assist the employee’s return to work: a phased return, amended duties, altered hours or workplace adaptation. Research shows that suitable work is actually good for you and assists recovery, and phased return is often very effective. The GP can also recommend that Occupational Health advice is taken, and this seems increasingly the way of the future: paid for by employers rather than the NHS, and with expertise about health in work-places of which medical public servants will often have no understanding. Make sure your business has an OH adviser who is practical and understands the economic rather than purely charitable relationship with employees.

The GP will only know what the employee tells them about work, all packed into a short consultation. The recommended work may be unavailable, unrealistic or too costly. So managers should look carefully at the recommendation, not panic and bear in mind that there is no absolute obligation to provide the adjusted work. If the adjusted work is not made available then the fit note becomes a sick note in respect of the original job and the employee is laid off as usual. Though the GP can only recommend not dictate, take care before refusing altered work as, for example, if refusal is unreasonable then an employee on SSP only may bring a claim for the money they would have earned if the adjusted work had been given, and a later dismissal for incapability may be contested as the adjusted work should have been given instead.

Faced with a Fit Note consider: will making the adjustment work for the business? Discuss it with the employee. If the adjustment will not work, and there is no suitable variation that will, the employee goes home on sick leave. Consult OH and also your employment lawyer if you think it may become contentious. Provided there is a positive approach, GP’s are sensible, and the right advice is taken early on, the new Fit to Work regime may prove to be a real asset to businesses. This should be clear when the Government publishes its evaluation of the new system in 2012/13.

Frances is employment partner at Blocks Solicitors and has considerable management experience. Contact her on 01473 343911 or frb@blockslegal.co.uk

The above is general comment only and individual advice should be taken

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