The Government has indicated that employers may, in principle, be able to overrule a GP’s advice in a fit note as to whether or not a person is potentially fit to return to work.
The little-noticed change was incorporated into new guidance on the fit note published by the Government in March and could allow an employer to give precedence to the views of an occupational health practitioner over those of a GP.
In the guidance for employers and line managers, under the headline “Is the fit note binding on me?”, the Government has made it clear that the answer is “no”.
The guidance states: “The assessment about whether your employee is not fit for work or may be fit for work (and any other advice in the fit note) is classed as advice, and it is for employers to determine whether or not to accept it.
“Occasionally, you may believe that your employee is not fit for work when they have been assessed as fit for work by their doctor, or you may think that your employee could do some work when they have been assessed as ‘not fit for work’ by their doctor.”
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The guidance continues: “In situations like this you as the employer are within your rights to gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals. You can choose to give this other evidence precedence over the advice in the fit note.
“Your employee may disagree with you, and you may need to demonstrate to an employment tribunal why the alternative source of evidence was more acceptable to you than the fit note.”
This change is highly significant, according to Dr Sayeed Khan, chief medical adviser to manufacturers’ organisation EEF.
“The fact an employer can choose to go out and gather other evidence, and that the employer’s evidence can take precedence over other evidence, is really important,” he said. “For example, an occupational health nurse that knows the site very well and has done an assessment for work may be able to say: ‘There is work on this site that is suitable for that person’.
“Then, if the employee refuses to come back to work, the employer could listen to the nurse instead of the employee’s GP. From there, there might be consequences. The employer, of course, may have to be able to justify why they prefer to take that advice in a tribunal, but it is quite ground-breaking that they could override the view of a GP.”
The move has come as the Government unveiled a targeted tax relief in the Budget in March, up to a cap of £500, on health-related interventions, something many in OH have been pushing for for a number of years.
Meanwhile, the attitude of GPs towards patients’ health and work has been highlighted in a recent Department for Work and Pensions’ research note.
It found that of the 1,665 GPs that responded, the majority believe that work is beneficial to health and that it is important for them to be “actively involved” in helping patients return to work.
Nevertheless, many GPs admitted to feeling pressured to issue sick notes for reasons that were not strictly medical, and believed local “return to work” support and advisory services could be improved.
GPs were also, by and large, increasingly positive about the effect the revised fit note was having on their consultations and patient outcomes.