As we all know, on 6 April 2010 the familiar ‘sick note’ that GPs supply to employees will be abolished. It will be replaced with the new ‘fit note’. Below, we explain what a fit note is and what the main consequences for employers are likely to be.

Basically, a fit note issued by a GP will say one of two things:

• the employee is unfit for work; or
• the employee may be fit for work.

If the fit note states that the employee is unfit for work, then employers should treat this exactly the same way as they would have treated the same statement on a sick note. This should normally be sufficient evidence for an employer to pay the employee any SSP they are entitled to.

An important thing to note is that there is no option on the fit note to say that an employee definitely is fit for work. It is a commonly held misapprehension that an employee who has been off sick needs to be ‘signed back to work’ by their doctor. That has never been the case. There has never been any legal impediment to an employee simply returning to work upon expiry of their sick note. The new fit note regime reflects this.

The idea of the ‘may be fit’ option is to allow the GP to specify measures that the employer could consider which might enable the employee to return to work. Examples of measures the GP might suggest on a fit note include reduced hours or light duties.

The DWP guidance on fit notes says that where an employer is unable to accommodate the recommended measures to allow the employee to return to work, then they can treat the ‘may be fit’ statement as a statement that the employee is unfit for work for the period covered. Therefore, there is no need for the employee to go back to the doctor for another certificate saying that they are unfit for work until the ‘may be fit’ certificate expires.

Where an employee is disabled in terms of the Disability Discrimination Act, any recommendations for a phased return to work on a fit note must be viewed in light of the obligation under the DDA to consider ‘reasonable adjustments’ to facilitate an employee’s return to work. In the case of a disabled employee, it may therefore be more difficult for an employer to conclude that the GP’s recommendations cannot be implemented.

The new regime is aimed at encouraging employers to think about getting people back to work on some basis rather than simply waiting until the employee is fully fit for all of their hours and duties. There is a great deal to commend in that approach, but it does also bring potential problems for employers.

Firstly, smaller employers who do not have access to occupational health services may find it difficult to assess precisely what adjustments would allow the employee to return to work on the basis of a few short words on a fit note. Therefore, the fit note itself may push employers towards incurring additional costs in obtaining medical advice.

Also, employers will have to carefully consider whether a ‘half-fit’ employee poses any additional risks in terms of health and safety and whether adequate supervision or other measures can be put in place to deal with such concerns.

Finally, where employees are certified as ‘may be fit’ to return on reduced hours, employers will have to consider whether to pay the employees SSP or company sick pay for the portion of their normal week that they are not working. One possible interpretation of a fit note that says a full-time employee may be fit to return on a ‘three days per week’ basis is that they remain unfit for work on the other two days per week. The new regime provides no clear answer as to whether sick pay is due on the days not worked, although the DWP guidance encourages employers to consider paying full pay during a phased return.

Overall, fit notes are likely to highlight to employers the grey area that exists between fitness and unfitness for work, as well as raising interesting questions about sick pay.