Fit notes will spark disputes between workers and employers

The government’s fit note proposals, which are intended to accommodate partially-fit returners to work, could lead to disputes between workers and their employers and GPs, a legal expert has warned.

Businesses have largely welcomed early return-to-work plans set out in the Department of Work and Pensions’ (DWP) Reforming Medical Statement consultation.

The proposals, expected to be introduced next spring, are designed to replace the sicknote culture and help more people stay in work, rather than drift into long-term sickness.

However, Sue Ashtiany, head of employment at law firm Nabarro LLP, has warned of “increased potential for conflict” between employers and employees over the scope of workplace changes that may need to be made to cater for partially-fit returners.

Ashtiany, who chaired the Employment Lawyers Association (ELA) group which drafted a response to the DWP paper, said GPs would need to make decisions about partial fitness to return to work without proper knowledge of what an employee’s job entails.

The ELA also questioned the absence of distinctions between employees on long-term or short-term sick leave and asked whether employers would really be expected to incur the expense of workplace adaptations for someone with a short-term acute illness.

Other concerns raised by the group included:

  • employers feeling forced to accept an early return to work
  • impact of the costs and resources involved for different employers – large firms may have occupational health advisers in-house and be better able to afford the cost of making workplace changes for a partially-fit returner, whereas smaller companies could struggle
  • the potential for disputes to arise from the difference between employers’ responses to fit note requirements and their obligations to make workplace adjustments under current disability discrimination laws.

Ashtiany said: “GPs will be expected to make judgements about the health of an employee without knowing enough about their employment, and employers will be uncertain about measures and allowances they [will] be expected to make for those who are now ‘fit’ for some work.

“This will become an area of contention and dispute with employers, and without having these concerns ironed out, I question whether this new initiative will be successful in cutting long-term sick lists.”

A DWP spokeswoman said: “The fit note consultation came to end on 31 August. We are now reviewing the responses and will publish the results in due course.”

Earlier this summer, Personnel Today reported that employers could face additional costs if workplace adjustments are required to allow an early return to work under the fit note scheme.

Comments are closed.