From 6 April 2010, the sick note was replaced by the 'fit note'. It is hoped that this will facilitate employees in doing some, or all, of their job with their employer's support, rather than remaining off sick.
Under the new scheme, where a patient cannot work at all due to illness or injury, they will be 'unfit for work'. This is the same as the current sick note. If they 'may be fit for work', the GP will go on to provide:
- A list of changes which they consider may assist the employee to return to work, such as a phased return, altered hours, amended duties and/or workplace adaptations
- A statement on the effects of their patient's condition on their work, and what can be done to help facilitate a return to work
- Confirmation of the time period their advice covers. In the first six months of any illness or injury, this can be for a maximum of three months
- A statement on whether any reassessment of their patient's fitness for work needs to be carried out in the future.
Employers' duties
On receipt of a 'may be fit for work' statement, nursery employers should discuss the employee's return to work. The GP's recommendations should be reviewed and a risk assessment carried out to consider if:
- any adjustments could be made which the GP has not considered
- industry-specific safety guidelines or regulations make the GP's suggestions unworkable
- a further opinion from an occupational health provider is needed.
If a return to work is feasible, any adjustments, return date, and a date for review should be discussed and agreed with the employee. In most cases the changes will be for a temporary period.
If a nursery employer cannot facilitate the return to work, they are not bound by the GP's suggestions. However, the reasons should be properly explained to the employee. The employee will then be entitled to sick pay as normal.
Risks
There is no penalty on employers for failing to implement the recommendation of a GP. However, nursery employers should be aware of other areas in which they could be challenged:
- Disability Discrimination Act 1995 - employers remain under an obligation to make reasonable adjustments to remove any detriment where an employee has a 'disability'
- Grievances - employees may become aggrieved about the way their 'may be fit for work' return is facilitated or turned down
- Unfair dismissal - if a 'may be fit for work' situation, or a subsequent grievance, is handled poorly, an employee may resign and claim that they have been constructively dismissed.
The new scheme leaves a lot of unanswered questions, and there is clearly potential for an increase in workplace disputes. It is hoped, however, that it will lead to a change of thinking from medical practitioners and patients in some cases, with a focus on what work the individual is able to carry out.
If you have any queries relating to the issues discussed in this article, please speak with Alan Sarhan at Veale Wasbrough Vizards. His contact details are: 0117 3145660 or asarhan@vwv.co.uk.
- Rob Collier is a partner at Veale Wasbrough Vizards and heads the early years team. He can be contacted on 0117 3145472 or rcollier@vwv.co.uk.
