As of Friday (1 July 2022), nurses, occupational therapists, pharmacists and physiotherapists will be able to legally certify statement for fitness for work forms (or fit notes, as they are often known). Under the old rules, only a doctor could certify this document and one of the drivers of this change was a way to ease the ever-increasing burden on GPs.
Fit notes such as these are required by employers once an employee has been off sick for more than seven days if their absence is continuing. The rationale for the form is that it confirms to the employer what illness the employee is suffering from and states what level of fitness they have (or don’t have) for work. It may also offer advice on how to support the employee in their return to work. The change means that other healthcare professionals (other than a GP) can now certify the form, provided the healthcare professional works in a general practice or hospital setting. The requirement for a fit note to be issued only after an assessment of an individual’s fitness for work has not changed however, which means that a fit note cannot be issued on request or over the counter.
The update to the system has received support from the British Medical Association and from the NHS, as it is widely hoped that the updated fit note regime will alleviate some of the pressure on GPs, by reducing some of the administration and bureaucracy from their role, which, in theory, should allow greater time them to see more patients. It follows a change in April 2022, which allowed GPs to be certified and issued digitally rather than in person and was a first step in modernising the regime in the wake of the Covid-19 pandemic.
What are the practical implications?
For employees, the practical implication of this update to the fit note requirements means that, depending on the nature of their illness, they will not need to see a GP specifically to obtain a fit note. Instead, where they are seeing, for example, a physiotherapist on a regular basis and that physiotherapist works in a hospital of general practice, they will be able to issue the certificate.
For employers, not much has changed, as a statement for fitness for work will still be required where an employee is absent for more than 7 days and should feed into the employer’s standard absence management process. It may make it more accessible for employees to obtain fit notes and it remains to be seen whether there will be any change in the general number of employees in receipt of fit notes.
Key considerations for absence management
For an overview of a best practice absence management process, you can listen to our podcast episode on Managing Absence available on our website here. However, broadly the issues for an employer to consider during any absence management process are:
- Entitlement to statutory sick pay (SSP) and/or contractual sick pay (i.e. anything an employer offers over and above the employee’s SSP entitlement)
- The reasons for absence (and if this is illness whether a medical report might be beneficial to assist with their return to work)
- Whether the absence has been caused by a workplace factor (e.g. stress, an accident at work)
- Whether the absence relates to a potential disability under the Equality Act 2020 and whether as a result any reasonable adjustments may need to be made
- Whether the absence relates to any other protected characteristic (such as maternity) and
- Whether a process (which could ultimately result in the employee’s dismissal) is being handled in a fair way and is appropriate in the circumstances.
If the employer decides an absence management process is appropriate, then they should carefully ensure the process is conducted through a fair procedure and take steps to ensure that any risks of disability discrimination are carefully managed. While any absence management process is fluid and will change depending on the potential recovery of the employee, employers should in the first instance attempt to manage the absence through return-to-work meetings via the employee’s line manager. In the event that such a process is not successful you then may look at instigating a more formal process and ultimately assessing whether dismissal is appropriate.
Care should be taken in the event any formal process is followed, firstly to ensure that an employer is investigating the reasons for an employee’s absence. As a matter of best practice, we would always recommend obtaining medical evidence (through a referral to Occupational Health or other medical professional as appropriate) in order that an employer can assess whether an employee is potentially disabled for the purposes of the Equality Act 2010 and whether any reasonable adjustments might be appropriate. In terms of the process, once dismissal is contemplated as a potential outcome, an employer should also be mindful of following a fair practice in line with Acas guidance.
Of course, an employer is looking to undertake an absence management process with someone who is disabled for the purposes of the Equality Act 2010, specialist advice should be sought at the earliest opportunity in order to minimise the risk of any potential discrimination claims arising. Please otherwise contact us for more advice and information.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
Solicitor, Employment Law
t: 01276 854 925
e: alex.harper@herrington-carmichael.com
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