Vicky Schollar: What is the potential impact of changes to the fit note system?

fit noteIt was announced in April that GPs may no longer be required to sign off fit notes and that responsibility will be passed to an unspecified healthcare specialist. What do the possible legal implications of this look like and what will be the impact on employees?

A sick note, or fitness for work (fit) note, is a written document stating whether an illness or current condition is affecting an employee’s ability or general fitness to work. The document can only be signed off by a medical practitioner, usually the employee’s GP or occupational therapist, and entitles the employee to remain off work and to claim sick pay.

Fit note reform is now a possibility following comments by the Prime Minister that claiming benefits has become a lifestyle choice for some. The government is proposing scrapping the current system for obtaining fit notes and setting up a new service based on objective assessments by specialist healthcare professionals. This change would combine healthcare and employment support systems, giving workers access to all services in a streamlined system in the hope that this will give them a better chance of returning to work.

For some employees who are genuinely eager to return to work and were previously unaware of support services available to them, this may be a welcome substitute that could assist their employer with providing adjustments for their return.

However, while well intentioned, there are potential legal implications of this proposal that will impact employers and employees. The new system suggests that employees will have to speak to healthcare professionals that they do not have an existing relationship with, meaning many may be less willing to open up. Individuals with long-term, varying and life-changing conditions which were better understood by their usual medical practitioner could become frustrated or confused. Looking at individuals without any background knowledge of their situation may lead to a narrow and less sympathetic view of their condition.

In these circumstances, employees may return to work before they have fully recovered, leading to further frequent absences. Employees may also refuse to turn up to work if they believe their healthcare assessment is incorrect and they are still unwell. Either situation could lead to them being subject to disciplinary action or capability processes.

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Employers need to take care when assessing employees returning to work, especially those with long-term conditions, otherwise they could face a rise in the number of grievances raised and claims for disability discrimination under the Equality Act 2010.

Vicky Schollar is head of employment at Gardner Leader