Understanding fit notes: what can employers learn from the new guidance?

While rarely extensive, the information supplied on a fit note (or “statement of fitness for work” to give it its full title) can take on huge significance in managing sensitive situations in the workplace. It’s therefore useful for employers to know what to expect from this document, and how to use the information in it both supportively and constructively.

What’s new?

Although not an entirely new publication, the official guidance on fit notes has been substantially updated. As well as revisions to the general guidance, employers can now turn the following resources:

• A checklist for employers: this is intended to support discussions between a manager and their employee after the issue of a fit note.
• An explanation of the form itself: this will help employers navigate the form, ensure they have all the information they should have, and also understand the significance of the various dates referred to on it.
• Case studies: as explained below, these largely focus on situations in which an employee has been deemed as ‘may be fit for work’, a classification which is likely to require both careful consideration and discussion.

Putting this in context

It is perhaps a reflection of post pandemic life, with a further-overstretched NHS and high levels of long term sickness, that the last eighteen months have seen a number of significant changes to the fit note system. As a reminder:

• April 2022: secondary legislation came into force which removed the requirement for a wet ink signature on a fit note. The new form can now be issued digitally, although some may still be physically signed.
• July 2022: fit notes were expanded so that they can now be issued in any clinical setting where an assessment of the patient’s fitness is made. As is illustrated in the new case studies, fit notes will now not only come from GPs, but also from other treating practitioners such as physiotherapists or nurses. This is something we wrote about in more detail here.

As well as these technical changes to the fit note system, it’s useful to also look at the new guidance in a broader context. As we wrote here, in August of this year the government launched a consultation into improving access to occupational health. With huge rises in economic inactivity due to long term sickness absence, this focus on supporting people to return to and stay in work is both understandable and welcome. Encouraging employers to take a less passive approach to fit notes - arguably the underlying aim of the revised guidance - is another way of addressing to this trend.

What do we learn from the guidance?

Although the underlying rules have not changed, a review of the updated DWP guidance, particularly the frequently asked questions it includes, is a useful refresher on some of the basics rules and principles relating to the fit note and tricky questions that can crop up in practice:

• When? Employees can self-certify for the first 7 calendar days of sickness absence; after that, entitlement to SSP (in addition to any requirements in an employer’s sickness absence policy) depends on a valid sick note. A common question asked by employers can be whether someone needs to be signed back into work. The guidance makes clear that unless it is an exceptional case (such as a role covered by specific DVLA provisions), this is not required and fit note does not provide for this situation.
• How long? How long someone is signed off for depends on the clinical judgment of the healthcare professional, but the guidance serves as a reminder that in the first six months of a person’s health condition, a fit note can only be issued for a maximum of three months at a time. A review date reassessment may be set, but this is not mandatory. Fit notes can not be issued with a future start date but can be back dated.
• What are the options? On the fit note, the employee will be certified “may be fit for work” or “not fit for work”. As discussed further below, this first option may provide advice for the employer to consider and ideally discuss with the employee. If the accommodations that would enable the employee to work cannot be made, the employee would be deemed to be unfit for work and entitled to SSP.
• What for? A basic but useful reminder in the DWP guidance is that fit notes can only be issued for medical problems. There are of course many other issues and challenges that may be impacting on an employee’s life, and therefore work, for which they need support. Some resources are listed in the guidance, but employers may also offer EAP support to which they can direct staff.

“Light duties, please”

A focus of the recent updates seems to be reminding employers of what temporary changes they might consider, particularly if an employee has been signed off as ‘may be fit for work’. In particular, exploring adjustments in order to facilitate a return to work is very much the focus of the new case studies.

In addition to the tick-box options of a phased return, altered hours, amended duties and workplace adaptations, the comments box on the fit note has space for the healthcare professional to add comments about how the employee’s health affects what they can do at work.

In this respect, the new case studies include a level of detail that arguably exceeds the more generic request for ‘light duties’ that is perhaps more commonly seen on fit notes. Nevertheless, there are some important points for employers to remember about what they can and should do with this information:

• Mandatory changes? Employers are not obliged to follow suggestions on the fit notes as they may not be able to accommodate the advice. That said, this isn’t a conclusion that should be reached lightly. There are of course benefits to both the employer and employee in thinking creatively about what can be done to put an assessment that someone “may be fit for work” into practice. For example, the guidance itself notes that cost savings that can be achieved by reducing absence, together with the fact that returning to work before being 100% fit can in fact help an employee’s recovery and wellbeing.
• Reasonable adjustments: If the absence relates to a disability, the employer will be under a duty to make reasonable adjustments. If the employer fails to make reasonable adjustments, it will be guilty of discrimination. Properly considering suggestions made on a fit note, as well as other options, is therefore crucial. The guidance provides a list of potential changes to consider, but what is appropriate will vary between organisations, roles and individual circumstances.

The law relating to reasonable adjustments is something that we explore in more detail here and adjustments relating to mental health specifically, here.

• Collaboration: significant emphasis in the new case studies is put on health and work discussions and the opportunity for a fit note to be a “catalyst for conversations about the employee’s health or adjustments during the return to work or stay in work process”. Whilst this may overstate the level of information fit notes tend to contain, the underlying emphasis on communication and collaboration is key in effectively managing sickness absence. As the guidance notes, the employee is often best placed to explain how their symptoms affect their ability to work. This could also be taken into consideration in determining whether adjustments made by an employer are ‘reasonable’.

Managing sickness absence

Working with the information provided in fit notes is of course just one element of managing an employee’s sickness absence. What else should be considered, whether that’s additional input from occupational health or more detailed medical advice, will of course depend hugely on the circumstances: how long the employee is signed off for; their pattern of absence; and how it impacts on their ability to work being only a few factors.

We have considered this topic in more detail in our guide to managing ill health and disability and await the outcome of the occupational health consultation to see whether this will bring this service more to the fore in absence management.