Fit Notes: Fit for Purpose?

On the 6^th April next month[1], the government’s new medical certification scheme comes into force replacing the current “Med3” sick note system.  It was decided to do away with the scheme because it focussed too much on what employees could not do and not enough on what they could.  In other words, a person was either too sick to work, or they were well and it ignored any, temporary or rehabilitative options that there might be to allow the person to remain in work.  For instance a person with back ache might be fit to work provided they did no heavy lifting or were allowed to get up and walk about every hour to ease discomfort whilst sitting.  With a Med3 that person can’t go to work despite the fact that they could do light duties.  The government’s aim, of course, is to reduce the number of days lost to sickness and the number of people from claiming benefit. The government has long been exercised by how to reduce the number of people on long-term sick leave, suffering from chronic conditions and the new “fitness to work” certificate tries to remedy that.

 Statutory Sick Pay will remain in being and, as before, a person will need a “Fit Note” from the eighth day of absence.  The certificate contains the following wording;

“I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer’s agreement, you may benefit from: a phased return to work; altered hours; amended duties/workplace adaptations”

The main thrust behind this is unobjectionable but, in practice, I can see it causing trouble.  G.Ps are unhappy about it because it places them in a potentially difficult position.  Margaret McCartney, a G.P based in Glasgow, writing in this weekend’s Financial Times, said that it requires G.Ps to become Occupational Health Physicians -  which is a separate discipline altogether and one which most G.Ps are not trained for.  She was also concerned that G.Ps might breach confidentiality to their patients in completing these forms because there is also space on them for further notes to be written in explanation of their recommendation. 

But, with my employment lawyer’s hat on, I can see two main impacts of this change.  The first is that people with less serious stress at work claims are going to find it more difficult to pursue their claims, especially for those employees who claim “stress at work” as a tactical weapon in response to disciplinary proceedings.   That must be a positive, especially for employers.  The second, less helpfully, is that employers may find themselves bogged down in arguments with their employees on just what they can and can’t do and precisely what the G.P had in mind.  Most employers are not occupational health experts anymore than most G.Ps are.  That could lead to grievances and, potentially, claims.  G.Ps might find themselves accused of professional negligence as well if they are too optimistic about what a patient can do. 

 Time will tell how this change will work and if it is successful in keeping more people in work.  It is a laudable aim and one that deserves to succeed.  I just worry that the government has tried to achieve it “on the cheap”. As usual.

[1] Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 SI 2010/137

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