Author: Julian Outen

Issue: March 2010

Publication: EADT

Currently, doctors can only advise whether an individual can or cannot work. To encourage more people to get back to work sooner, and to encourage employers to facilitate and therefore benefit from this, doctors will now also be able to advise whether an employee may be fit for some work, even if not fully fit to resume normal duties.

The Fit Note will still be used as evidence that an employee cannot work due to illness or injury, and the requirements of the Statutory Sick Pay (SSP) regime are unchanged. The idea, however, is that fewer employees will be signed off work when they could possibly do some or all of their job, provided they are given some support. Examples of the support envisaged, include a phased return to work, amended duties, work-place adaptations and altered hours. Doctors are also given the opportunity on the form, to explain how a particular condition may impact upon what an employee does at work.

Upon receipt of a “May be Fit for Work” statement, an employer will need to discuss the advice with the individual, consider the options suggested, and any other action that could help a return to work, in order to assess whether this may be possible. The advice on the statement is not binding and ultimately it is the employer’s choice how to act. Employers will still need to have regard to their obligations under the Disability Discrimination Act 1995, where appropriate. If the advice simply cannot be followed and a return to work is therefore not possible at that stage, a review date can be set, or a return should take place at the end of the statement period. Sick pay as per contractual terms or SSP rules can be paid in the meantime.

It is possible to permit an employee to return to work before the end of a "Not Fit for Work" statement, by agreement, for example if an employee has recovered more quickly than envisaged under the statement by the doctor. There is clearly scope under the new system for disagreement between parties over the ability to return to work and/or the level of support necessary to facilitate that. Failure to follow the advice of the doctor and thereby keeping an individual away from work and on sick pay also raises the potential for dispute.  It will remain to be seen how all this will work in practice and whether the regime proves to be fit for purpose.

Julian Outen
Partner and Employment Law Specialist

This article is for general information purposes only and does not constitute legal or other professional advice. You should not act or rely upon this information.

Published with kind permission of the EADT.