The new ‘statement of fitness to work’, as introduced by the government on 6th April 2010, was designed to encourage people to go back to work in some capacity, with appropriate support, rather than stay off work because they are unable to carry out their full range of work activities. The main changes brought about by the new statement are as follows:
- Removal of the ‘fit for work’ option;
- A new option for a doctor to advise that an employee may be fit for work with some support;
- More space for a doctor to provide information on how the employee’s condition will affect what they do; and
- Tick boxes for doctors to suggest common ways to help return to work.
However, what happens if an employer fails to follow the doctor’s advice? If the employer cannot or will not make the changes advised, it will not incur any legal liability simply for failing to make those changes, as the doctor’s recommendations are not legally binding. In this case the employee is treated as sick and there is no need for a revised statement to be issued since the existing one is evidence that the patient is unable to carry out his or her normal duties and can not therefore be required to work.
However, employers should be beware of two areas where the contents of the fit note could require taking action. The first is personal injury; if the employer fails to fully implement advice in a fit note on the employee’s return to work and his or her condition gets worse, the fit note could be used as evidence that the injury was foreseeable. The second is disability; an employer who follows advice given by a doctor in a fit note does not automatically discharge its duty under s.4A Disability Discrimination Act 1995 since it may be that further or different adjustments are appropriate.
By failing to make necessary changes in either case, the employer could leave themselves open to constructive dismissal and disability discrimination claims.
Employers need to make necessary arrangements in dealing with employees on sickness absence to avoid leaving themselves open to constructive dismissal and discrimination claims. Get in touch with us if you need some advice.
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