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The Department for Work and Pensions’ (DWP) formal response to a consultation on fit notes explains that the new fit notes, which will replace GP sick notes from 6 April 2010, will contain two options: either ‘unfit for work’ or ‘may be fit for work taking account of the following advice’. The option ‘fit for work’ has been removed.

The response states:

"Whilst we understand that some stakeholders believe that there may be some practical benefits from retaining ‘fit for work’ statements, especially for those involved in safety-critical roles, doctors completing the medical statements do not have the knowledge or expertise about an individual’s job role and the risks involved. The doctor will have to indicate on the new revised statement whether or not they need to assess their patient’s fitness for work again, making the need for a ‘fit for work’ option unnecessary."

It adds:

"In all cases, it is the employer’s responsibility to carry out a risk assessment when an employee returns to work to ensure there is minimal risk to the employee and others in the workplace. We have met with the Association of British Insurers to confirm that a ‘fit for work’ statement is not needed for Employers’ Liability Compulsory Insurance (ELCI) reasons."

Rachel Dineley, Head of the Diversity and Discrimination Unit at law firm, Beachcroft LLP, commented:

"All employers know how unsatisfactory a typical sickness certificate can be. A new regime, due to come into force in April 2010, will, for the first time, give employers more than minimal information. The new 'Statement of fitness for work' will be used for social security or statutory sick pay purposes. Along the way, it will give the employer information on the employee's condition and their prospective return to work. GPs will be required to indicate if there is a measure which, with the employer's agreement, could be put in place to facilitate a return to work, such as altered hours or amended duties.

"The obvious risk is that the GP will recommend a course which is costly or not feasible from the employer's perspective. Undoubtedly there will be teething troubles at the start and GPs will require training. Those already working under pressure will not necessarily welcome the additional time that will need to be taken to make this regime work.

"From an employer's perspective it will be all important for GPs to understand the workplace environment and what, in practice, can be accommodated, to facilitate a return to work. Dialogue between the GP, employee, and employer will be essential, to give full effect to the new regime.

"In its response the Government has recognised that it is not the doctor, but the employer, in consultation with the employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work. It encourages employers to initiate discussions with their employees. If an employer is not able to facilitate a change or adjustment the GP's advice on the statement will be evidence that an individual has a condition which prevents them carrying out their current role. Employers who work with occupational health practitioners may disagree with the GP's advice. If the employee's condition constitutes a disability, under the Disability Discrimination Act – to be replaced with provisions in the Equality Bill, currently going through Parliament – the employer will have a duty to make reasonable adjustments in any event.

"An area that is already seen as complex may become more complicated still. However, if it serves to help reduce sickness absence and encourages proactive steps to facilitate an employee's earlier return to work, there may be economic benefits all round."

Partner at law firm, Eversheds, Simon Rice-Birchall, said:

"Whether the new approach succeeds will depend, to a large extent, on how well GPs adapt to using the form. The DWP says it will be issuing guidance for doctors on the new medical statement and there will also be specific guidance for employers, although no publication date has been given.

"Employers will need to look carefully at how they manage sickness absence. Those with carefully considered return-to-work programmes will be better placed to benefit from the new regime. In contrast, employers who fail to engage with the new approach could find themselves at an increased risk of disability discrimination claims. This is because a new style report might highlight changes that an employer could make to the employee's duties or workplace that would help them return to work sooner."

with thanks - www.workplacelaw.net