In April, the Prime Minister set out his intentions to tackle Britain’s ‘sick note culture’ by making fit notes harder to obtain. His comment was made after figures in February 2024 showed that a record 2.8 million people were out of work because of long-term ill-health. The Prime Minister claims that the current system for fit notes is being “undermined” by “subjective and unverifiable claims” about capability. His comments also follow a two-thirds increase in government spending on working age disability and ill-health benefits.
What is a fit note?
Statements of fitness to work, commonly known as ‘fit’ or ‘sick’ notes, are issued to individuals if they are not well enough to work for more than seven days. Currently, GPs, nurses, occupational therapists, pharmacists and physiotherapists can issue a fit note. Typically, a note will state the reason for absence and the duration of absence. Sometimes, but less frequently, it will state that an employee may be fit to work provided certain measures are put in place; for example, a phased return or reduced hours. The production of a fit note is also usually required by an employer to pay statutory sick pay.
What would the new system look like?
While fit notes will remain in place, the responsibility for issuing them will be taken away from GPs and based on ‘objective assessments’ by ‘specialist’ work and health professionals. However, no further details have been provided about what the assessment would involve, and which professionals will be carrying them out. If these are consultants or other NHS workers, they are likely to be already working at capacity and so giving them additional duties could lead to delays in fit notes being issued in a timely manner. Any delay in employees receiving an appointment with a specialist work and health professional or being issued with a fit note could affect their entitlement to sick pay.
Concerns for businesses
There is a risk that employees may be sent back to work prematurely if the person assessing their fitness to work does not have expert knowledge of an employee’s condition, or if their performance is target driven. This potentially places the health and safety of the employee and their colleagues at risk if the employee returns to work before they are well enough to do so. This could increase the risk of claims being brought against the employer and subsequently lead to the employee being signed off work anyway and for a longer period than they may otherwise have been. Employees returning to work before they are fit to do so could also affect employers’ liability insurance.
If an employer is concerned that an employee may not be well enough to come back to work, they could ask the employee not to do so while they obtain a second opinion. However, this is likely to be costly. Not only will the employer need to pay for any third-party health assessment, they may also need to pay the employee their full pay, as strictly speaking they are not sick. Care needs to be taken by employers to avoid breaching the implied term of trust and confidence. Difficulties will also arise if an employee does not have a fit note but says they are still too unwell to return. In this situation, the employer will need to consider whether disciplinary action is appropriate depending on the individual’s circumstances.
What’s next?
No changes will be made until the Fit Note Reform consultation ends in July 2024, after which the government is likely to publish their proposals in full. However, any change is likely to be dependent on the Conservative government remaining in power following the next general election, as other parties are not supportive of the proposals.
In the meantime, to help minimise the risk of claims made by employees returning to work following long-term sickness absence, businesses should consider:
- obtaining a second opinion if they are not sure whether an employee is fit to return to work;
- reviewing existing policies and contracts to see whether they provide sufficient protection and flexibility; for example, referring them to occupational health;
- ensuring they engage with employees throughout their sickness absence, which should assist with any transition back to work;
- keeping clear and precise records, including conducting a return to work meeting;
- checking insurance policies to ensure they provide adequate protection;
- carrying out risk assessments on a return to work to ensure that any health and safety risks are identified and steps taken to mitigate them, where possible; and
- ensuring reasonable adjustments are considered where appropriate.