Fit Notes: what they are and how they work
By Dr Seamus Dagens BA BCh BAO MB MFOM, Consultant Occupational Physician, PMI Health Group
The cost to the economy of absence and unemployment due to ill health in the UK is estimated to be £100bn each year. Studies show that work is good for health; and prolonged sickness absence can produce its own set of problems, such as:
- Isolation
- Loss of confidence
- Mental health issues
- De-skilling
- Social exclusion
In March 2008, Dame Carol Black published her report “Working for a Healthier Tomorrow” following a comprehensive review of the approach taken to health at work. Her recommendations included an overhaul of sickness certification by General Practitioners (GPs).
Currently, a Med 3 form (often referred to as a ‘sick note’) is issued by GPs to people when they are ill or injured. This document provides advice about individual’s fitness for work, and they are often used by employers as evidence that an employee cannot work for sick pay purposes.
From 6 April 2010 the Med 3 changed. The new Med 3 replaces the old Med 3 and Med 5.
A new Med 3 (now often referred to as a ‘fit note’, and more correctly ‘Statement of Fitness for work’) is required after the seventh calendar day of absence. During the first 6 months of absence a GP can issue a Med 3 indicating the individual is unfit for a maximum of 3 months. After the first 6 months of incapacity, a Statement can be issued for any clinically appropriate period up to an indefinite period.
The Med 3 can also be issued following a face to face consultation, a telephone consultation or on the basis of information obtained from another clinician (e.g. a specialist report).
To help more people get the support they need to get back to work the new system means that a GP can advise that your employee is either:
- Not fit for work, or
- May be fit for work, taking account of the following advice.
A GP will give a ‘may be fit for work’ statement if they think that their patient’s health condition may allow them to work if they get suitable support from their employer. If an employee is too ill to work the GP will advise this.
The aim of this change is to give greater flexibility to both employers and employees in managing sickness absence. Various approaches may help individuals back to work following a period of absence due to illness such as:
- a phased return to work
- altered hours
- amended duties and/or
- workplace adaptations.
If it is not possible to accommodate the advice on the Med 3 the employer should use the Statement as if the doctor had advised ‘not fit for work’.
The employee does not need to return to their doctor for a new Statement to confirm return to work.
Frequently asked questions
What should I do if the doctor has indicated ‘may be fit for work’?
The Statement has been designed to give you the information needed to begin a discussion with an employee on whether they can return to work despite their illness or injury. You should consider the doctor’s comments and discuss this with your employee. If a return to work is possible you should agree any temporary changes to their job or hours and what support you will provide and for how long. Your Occupational Health team will be happy to give further guidance and advice on individual cases. While GPs know their patients, Occupational Health Nurses and Doctors have undergone specialist training in Occupational Health. In addition they have an in depth knowledge of the work place. For that reason they can give more detailed information regarding fitness for work issues in individual cases.
You should consider whether your sickness absence management policy needs amending to reflect the introduction of the Statement of Fitness for Work. This may involve consultation with your employees or their representatives.
Is the advice on the Statement binding?
No. This is about giving you greater flexibility and better information to manage sickness absence. It’s your choice after discussing the Statement with your employee, how to act on the doctor’s advice. When considering the GP’s advice, you should always consider if the advice is consistent with any industry or sector specific safety guidelines or regulations that the doctor may not be aware of.
If the doctor has advised that your employee ‘may be fit for work’, and you cannot make the adaptations or adjustments to help a return to work, you should explain the reasons for this to your employee and then use the Statement as if the doctor had advised ‘not fit for work’. Your employee does not need to go back to their doctor for a new Statement to confirm this.
Will I still be covered by my Employers’ Liability Compulsory Insurance (ELCI)?
Your liability insurance should not prevent employees who 'may be fit for work’, return to or remain in work. Also, you do not need a Medical Statement stating fitness for work for an employee to return to work. An employee does not necessarily need to be 100% fit to return to work. However, you will need to continue to manage your employees appropriately and carry out a risk assessment – based on the evidence from the doctor, your knowledge of the work and workplace and further support where necessary. If you have any concerns about the coverage of your insurance, you should contact your insurer. If you need assistance with risk assessments please contact your Occupational Health team.
How does this affect the Equality Act?
If your employee has a disability as defined by the Equality Act, your obligations have not changed.
How long do any amended duties or workplace adaptations have to last for?
On the Statement a doctor will state the period of time their advice is for. When agreeing a return to work plan you should always be clear on the length of time any amended duties or support is for. In most cases this will be about temporary measures. If the employee cannot then return to their normal duties, you may need to discuss further or alternative temporary measures or, if needed, have a discussion on the long term effects of their health condition on their job, taking into account your responsibilities under the Equality Act. A referral to Occupational Health is likely to be beneficial at this point.
Can I request a Medical Statement advising that my employee is ‘fit for work’?
Unlike the sick note, the Statement of Fitness for Work does not include the option for doctors to advise someone that they are fully fit for work. One does not need to be fully fit to return to work. Employees do not need to be ‘signed back’ to work by a doctor.
In some cases, there are existing procedures to ensure someone is fit to carry out their role safely and these should be followed – for example with the DVLA rules for LGV/PCV drivers.
If you feel you need a medical opinion stating that your employee is fit for work, the Occupational Health team will be happy to advise accordingly.
What should I do if an employee wants to return to work before the end of a ‘not fit for work’ Statement?
Sometimes your employee will be able to return to work before the end of a Statement period where a doctor has advised that they are not fit for work. This may be because the employee has recovered faster than the doctor expected, or the doctor did not know of ways in which you could support your employee to return to work. If you agree with your employee that it is appropriate for them to return to work, you do not need to wait until the end of the Statement period for them to do so.
What should I do if I offer support to an employee to aid them to return to work and they disagree?
If you believe that on the basis of the advice from the GP and your knowledge of the workplace, you can support your employee to return to work and they disagree with your proposal, your first option should always be to discuss the issues with your employee to find out why they believe they cannot return to work. There may be an aspect of their condition or the workplace that you have not considered.
If no agreement on your employee’s fitness for work can be reached, you may wish to seek advice from your Occupational Health team. You should also consider your organisational policy for absence disputes. More information on best practice and support can be found from Acas online at www.acas.org.uk.
What should I do if I do not understand the advice on the Statement?
If you do not understand or are unsure on how to act on the advice on the Statement your first option is always to discuss the advice with your employee. They may be able to provide more information on the context of the advice. If you are still unsure your Occupational Health team can offer further clarification. You can also write to the doctor for more information; however, bear in mind that you may have to pay for this service and a busy GP may not be able to respond to your enquiry immediately. It can often take several weeks to receive a reply from a GP in such circumstances.
How does this affect Statutory Sick Pay (SSP)?
Your responsibilities to pay SSP have not changed. SSP will still be payable under the current rules for any sickness absence of 4 days or more where the employee meets the qualifying conditions. Where a doctor has advised that an employee may be fit for work, but the employee remains off work because you are not able to provide the necessary support, you should consider the advice on the Statement as you would a ‘not fit for work’ Statement. Your responsibilities to pay SSP in these cases will not change. For more information on SSP see the HMRC website at http://www.hmrc.gov.uk/employers/employee_sick.htm#2b.
In cases where it may be appropriate to support your employee back to work by reducing their hours they work for a period, you should consider the financial impact on them and whether they might be disadvantaged.
In such cases it is important to remember that SSP is only a minimum provision. When considering a return to work involving reduced hours, it may be cost effective to consider paying sick pay for the hours not worked due to illness or injury, even when SSP does not apply.
If you operate a separate occupational sick pay scheme, the changes may also have implications for the scheme. If so, you should seek to review it in consultation with your employees or their representatives.
References
DWP Website: http://www.dwp.gov.uk/fitnote/
Direct Gov Website:
http://www.direct.gov.uk/en/Employment/Employees/Sicknessabsence/DG_187161
