The Fit Note. Fit for purpose?

The Note

In 2010 Fit notes (or statements of fitness) replaced sick note. It is issued by a doctor and clarifies the employee’s capacity for work; those who are fit to work are not issued with a fit note.
If the employee is able to undertake some work the fit note will make recommendations for the employer to consider, these include;

• a phased return to work
• altered hours
• amended duties or restrictions
• workplace adaptations

Usually, there are some comments explaining the recommendations and rationale behind it and they are only required if the employee is absent or likely to be absent or incapacitated for more than 7 days. It is hoped that this change will support keeping people in work rather than moving out of work and towards employment support allowance (the old incapacity benefit).

The fit note and employers
Is my assessment or advice binding on my patient’s employer? No. Your assessment on whether your patient is not fit for work or maybe fit for work (and any other advice in the fit note) is classed as advice. It is for employers to determine whether or not to accept your advice. They may decide to seek alternative advice and give this preference to yours. If so, they should be able to demonstrate that the quality of this alternative advice was at least comparable to yours, should a dispute between employer and employee lead to an employment tribunal.

Occupational Health and the Fit Note
In 2013, new guidance was issued and allows the employer to choose the occupational health opinion over those of a General Practitioner.
It is the role of occupational health to remain impartial and provide evidence-based medical advice. OH often has a more robust understanding of the workplace and can be view as workplace specialist, GP’s by their nature are the patient’s advocate.
This is now supported by case law and various employment tribunals accept that the ‘reasonable’ employer; can choose to hold the opinion of the OH professional over that of a GP.

Some examples where case law precedent has been set are;
• Jones v The Post Office [2001] EWCA Civ 558, [2001] IRLR 384, Court of Appeal
• British Gas plc v Breeze EAT 503/87
• Evers v Doncaster Monks Bridge
• Jefferies v BT Tanker Co Ltd (1979)
• First Manchester Ltd v Kennedy (2005 UKEAT/0818/04
• Heathrow Express Operating Co Ltd v Jenkins (2007 UKEAT/0497/06)

However, employers should note the importance of gaining sufficient & appropriate information is key –

• OH practitioner should have appropriate qualifications & training in OH
• The employee should be personally examined by the OH doctor or nurse and the decision should not have been merely made on a report or on review of the medical notes
• The written report by the OH practitioner is specific and clear
• When making a decision with regards to conflicting medical advice, it is important that the employer has established that returning an individual to the workplace would not pose a serious threat to the health & safety of that employee or to that of colleagues, visitors or the general public
• Where appropriate when an employee is being treated by a hospital specialist that a current report has been obtained.

The beneficial effects of work on physical and mental health and wellbeing, generally outweigh the risks of work and the harmful effects of prolonged sickness absence (Waddell & Burton 2006). Overall, the presumption should be that staying at or returning to work is beneficial.

Work (both paid and unpaid) is a health-promoting activity and the benefits have been well documented (Acheson 1998; Waddle and Burton 2006).

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