“Getting the most out of the fit note”: new guidance for UK employersDavid Whincupon October 17, 2023 at 12:46 pm Employment Law Worldview


Well, sort of.  Almost nothing has changed in this month’s new government guidance on fit notes over the previous versions.  You can receive a fit note digitally these days and (to reduce doctors’ workloads) a wider range of medical practitioners are now authorised to issue them, but officially that’s about it. That under-sells it, maybe —  I suspect that many of the numerous basic grammatical errors in the guidance are also new, since it is hard to believe that anyone could have proof-read the earlier version and deliberately left them in. 

But new or not, the approaching season of flu, colds and darkness makes this a timely moment to look again at a couple of the points within the guidance where weary HR practitioners may be justifiably sceptical.

First, before they can complete a fit note (the Med3, if you want to upgrade your HR jargon), the medical professional must “undertake an assessment either through a face-to-face video call, telephone consultation, or through considering a written report by another healthcare professional“.  If a fit note is issued to you on the basis only of review of another practitioner’s written report, it is sensible to seek a copy of that opinion or as a minimum to request the issuer to quote the parts of it which he/she relies upon.  You may or may not get it, but you can see the potential risks to your business of reliance on a report issued by someone who has neither seen nor spoken to your employee on the back of another document that you have not seen, which may itself be prepared without any actual examination of him either.
The employer and employer should agree on how they agree to intend to stay in touch during the sickness absence period and agree how much conduct is reasonable”.  This is obviously a lovely idea but often simply not realistic, in particular the sort of “fight and flight” mental health cases where the employee makes the allegation of discrimination or bullying and then goes off sick and refuses to discuss it on the claimed basis that he is too unwell to do so.  This poses an immediate and obvious risk of both parties becoming trapped in a spiral – he will not talk to you until the issue is resolved and you cannot take steps to resolve it until he does.  In such cases there is often no possibility of agreeing how often to make contact because the employee does not want to talk to you at all, however counter-productive that may ultimately be for him. 
Where that proves to be the case, and save in the face of direct medical evidence that hearing from the employer is actively harmful to the employee, it is up to the business to decide the level of contact reasonably required.  That will depend on the facts of the case but it will sensibly include regular updates on the employee’s condition and an early physical or virtual meeting to discuss the triggering allegation.  Keep in mind that “unfit to work” on the face of the fit note does not in any way necessarily equate to “unfit to talk about work“.  Especially where the absence is blamed on something alleged to be its fault, a discussion with the employee at the earliest opportunity is a reasonable requirement on the part of the employer.  See also our post here [insert link to blog of 2 November 2017] concerning the official guidance issued to doctors in connection with their advice to employees going off sick in the face of potentially difficult meetings.  This advice is now over a decade old but still, in many employers’ eyes, woefully under-applied.  The gist of it is that it is generally desirable for the doctor to advise attendance at that meeting to get it over with and the issue put firmly behind their patient, rather than to avoid it. 
Your employee can return to work at any time, even if this is before their fit note expires.  They do not need to go back to their healthcare professional first”.  For physical complaints this is probably true, but where mental health is concerned, the position is much less clear.  In such cases, there can obviously be greater doubt as to whether the employee is the best judge of his own capabilities.  If the return to work is followed by a relapse, for example, the employer can expect some fairly searching questions around the measures it took to ensure that the return was safe, particularly if this is not the first time.  If you have concerns that your employee is returning prematurely, it remains the case despite this new guidance that a request for prior medical reassurance makes good sense. Even if it is the expiry of his sick pay which is putting the sick employee under pressure to return before he is really ready, your greater duty is to his physical/mental health, not financial.
However, this is about obtaining a green light for the employee’s wish to return to work.  What if it is the employer which believes the employee is not so incapable as his fit note suggests?  The guidance allows an employer to challenge a fit note. It can request that the employee undertakes further assessment by a medical professional, but the very next sentence confirms that he “cannot be required to provide further medical evidence beyond the fit note”, so that request may not take you far.  If, thwarted, you decide to discontinue statutory sick pay to leverage the curative qualities of his not being paid, then the employee is entitled to a written statement of your reasons for doing so, and can take that to seek a determination of entitlement from HMRC.  Statutory sick pay is a sufficiently small sum that this will rarely be worth the hassle, but employers would certainly be entitled to take doubt over the employee’s medical unfitness into account in the assessment of any discretionary sick pay. However, you will need some pretty good reason to do so – it takes many years’ training to qualify as any of the practitioners now entitled to issue fit notes and dismissing a medical professional’s advice because you know better is a gutsy play.
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