Fit Notes and Doctors Notes

England football fans have been fretting over Ashley Cole's broken ankle and whether he will be match fit to be named in the final squad of 23 by June 1st and then play in the World Cup in South Africa.

Concerns over fitness are not restricted to the business of football.  April 6th will see the introduction of the 'Statement of Fitness for Work', more commonly referred to as the 'fit note', which will replace the current 'sick note', and feature a new philosophy of 'may be fit for work'.

The objective behind the change is that it will encourage people, who have been absent from the workplace, to engage in dialogue with doctors and employers about how they may return to work. There are a number of drivers behind this move, including evidence that long term absence from the workplace can impact upon an employee's mental and physical health.

Beyond concern about personnel's wellbeing, there are also some hard, economic factors behind the move.  The government has predicted that the fit note could save UK plc somewhere in the region of £240 billion. Furthermore, a government review found that circa 175 million working days are lost annually to workplace absence and 3% of the working population is off sick at any one time.  The cost to the taxpayer is about £60 billion, not counting the cost of the additional stresses and strains placed on employers and employees trying to cover for absent colleagues.

Tackling the latter is also a key element behind the change as it is expected that fewer employees will be absent from work if they are able to perform part or indeed all of their roles with support from employers.

The fit note will feature information from the employee's doctor detailing how the patient's medical condition impacts upon the ability to meet the demands of the role. It also has a series of tick boxes as a means for the doctor to suggest what could be done to help the employee to resume work.  This is an area of concern as there is a question of how familiar a doctor can be with any given workplace.

Nonetheless, this information ought to allow employer and employee to discuss how and when the employee can return to the workplace.  Typical scenarios could include a gradual return – rather like a footballer who plays part of a game while building up match fitness levels - amended working hours; changes to the working environment itself or adjusting the activities expected of an employee.

It could be that an employee is not fit for work, in which case the fit note will be used much as the previous 'sick note'.  And employers should remember that the Statutory Sick Pay requirements remain in force as do obligations imposed by the Disability Discrimination Act. 

The doctor's suggestions about facilitating a return to work are not binding. They are suggestions which may be appropriate or not, depending on the demands of the particular industry and any risk assessment.  An occupational health referral may also be suggested by a doctor, who will allot time periods against suggestions - in most cases any changes are expected to be temporary. 

In the event that an employee cannot assume the duties for which he or she was originally employed further dialogue will be required.  Conversely an employee may fee well enough to resume all duties earlier than expected. This should not be an obstacle to the employee's full return.

Should an employer feel unable to comply with the suggestions, this should be explained to the employee and the fit note will then be regarded as if the employee was not fit for work.  However, this may leave the employer open to tribunal action, on the grounds of constructive dismissal for example. If there is any doubt, dialogue should be extended to include not only the employer and the employee but also the doctor, bearing in mind the restrictions imposed by patient confidentiality.

The government believes that any costs incurred by employers for phasing in a return to work or any adaptations to the workplace will be outweighed by reduced sick pay, the availability of skills and increased performance.

England fans are also now debating the unfortunate loss to the team selectors of David Beckham's dead ball skills following his Achilles tendon injury.  I hope that enough of the remaining key England players are match fit for the tournament and deliver a world-beating performance to pick up the World Cup.