Fit notes: Are they fit for purpose?

With a recent CBI survey estimating that sickness absence costs the UK economy £16.8bn per year, many employers surely hoped that the “fit note” regime introduced on 6 April 2010 would help reduce such absence by encouraging employees back to work. Fit notes give GPs the option of noting that either a sick employee is not fit for work, or that they may be fit for work, subject to the recommendations of the GP (which could include, for example, a phased return to work, reduced hours or workplace adaptations). 

• To work or not to work?

On the anecdotal evidence available so far, and on the basis of our own experience, it appears that GPs are taking the cautious approach and tend to sign employees off as "not fit for work" rather than giving any advice as to how their return might be facilitated. Therefore, the change that was anticipated for employers simply has not materialised. 

• Potential headaches

One reason for GPs reluctance thus far to change their practice may be a lack of occupational health expertise. With the Royal College of General Practitioners currently rolling out training on occupational health for GPs, the use of fit notes to give advice as to how to facilitate an employee’s return to work may well increase.

While the increased use of fit notes in this way should benefit employers, there are also some potential issues. For example, if a GP gives advice that an employee can return to work on a phased basis, but the employee believes they are still too sick to return to work, can the employer discipline the employee if he or she chooses not to return? Or, where a GP makes recommendations which an employer fails to implement, could this give rise to a claim by the employee for constructive dismissal or even disability discrimination? 

There is no straightforward answer and the approach the employer should take will depend on the circumstances of each case. In the absence of guidance on such issues, employers must continue to tread carefully when dealing with employees on sickness absence – in much the same way they have done before.

• Employers beware…

Unfortunately, it is not just employers who have had one eye on the fit note development. Websites offering fake sick certificates have now been updated to include fake fit notes. On one such site, employees can purchase two “authentic looking” fit notes, complete with doctor’s stamp, for £10, including free next day delivery. The website claims that they are for "novelty use only", but perhaps their customers are not so scrupulous. An employee who is caught using a fake certificate will be guilty not only of gross misconduct but potentially also of fraud if the certificate was used to obtain sick pay.

So what can an employer do if it has reason to believe that a fit note is not genuine? An obvious way may be to call the doctor's surgery to confirm that the fit note was issued through them. Another may be to refer the employee to an independent occupational health expert. However, care should be taken when questioning medical certificates since an innocent employee could claim that the employer has breached its duty of trust and confidence in doing so. Reserving the right in employment contracts to verify medical certificates and to require employees to undergo a medical examination, and then exercising this right reasonably, will help minimise the risk of claims.