What should the employer do on receipt of a fit note?

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Anna is a project manager for a telecommunications business, TelCo Ltd. In early December 2009, Anna suffered a prolapsed disc. She had back surgery in February 2010 and has been signed off sick by her doctor until the end of April. Anna sees her doctor in the middle of April and they agree that she is not yet fully fit but that she could return to work if TelCo makes some changes and adaptations.

Anna’s doctor completes a fit note for Anna and ticks the “may be fit for work taking account of the following advice” option on the note. He also ticks the relevant boxes to indicate that Anna may benefit from a phased return to work, altered hours and workplace adaptations. The doctor includes the following comments on the note: “This patient cannot sit for long periods. Her workstation should be reviewed and may need to be adjusted. Homeworking will help. Consider a referral for occupational health advice.”

The doctor confirms on the fit note that this will be the case for eight weeks, and that he will need to assess Anna’s fitness for work again at the end of this period.
Anna calls her manager, Kate, and tells her that she could come back to work at the end of April. Anna sends a copy of her fit note to Kate. Kate does not want Anna to return to work before she is fully fit and does not know if it is possible for TelCo Ltd to make the adjustments suggested. Kate calls Martin in HR for advice.

How should Martin advise Kate?
Martin should advise Kate that Anna’s fit note should form the basis for a discussion with her about whether or not she can return to work despite her back problem. Martin should reassure Kate that the fit note is not binding on TelCo Ltd and that, after discussing the note with Anna, it is TelCo’s choice as to whether or not it accommodates any, or all, of the suggested changes to facilitate Anna’s return to work (see Fit notes: overview in this series for more details). However, he should make clear that, if Anna has a disability under the Disability Discrimination Act 1995, TelCo is under a duty to make reasonable adjustments to remove any disadvantage that Anna may suffer as a result.

Kate should meet Anna to discuss the note. She will need to consider the advice on the note and whether or not TelCo can make any, or all, of the recommended adjustments, and their potential impact on how Anna will be able to carry out her role. Kate should also refer Anna to occupational health, as suggested on the fit note, if TelCo has access to this service (although a referral will not be appropriate or necessary in all cases). Once an occupational health report is available, Kate should have a further discussion with Anna to explore the options for her return to work.

Kate and Anna meet to discuss the fit note. Kate asks Anna to expand on the advice given in the note. Anna says that she would like to work a three-day week when she first returns, to be phased to a five-day week over the eight-week period specified in the fit note. She also wants to avoid travelling during the rush hour. She would like to work at home as much as possible so that she can lie down during her breaks. Kate and Anna discuss how these adjustments are likely to impact on Anna’s job, the department and workplace. Kate and Anna agree that homeworking will be difficult in Anna’s role given that she is managing a team. Kate is also concerned about the potential cost of setting up a workstation for Anna in her home, given that it may be needed for only a limited period. However, she agrees to consider this as well as the other adjustments. Anna agrees to see TelCo’s occupational health doctor for a further assessment.

What should Kate do next?
Kate should make a note of her conversation with Anna. She should consider how the proposed adjustments will affect Anna’s ability to carry out her job, the impact on the rest of her team and whether or not it would be possible for her to perform her role with the adjustments. Kate may wish to discuss the matter with colleagues, including Martin (subject to the requirement for her to maintain confidentiality).

Kate should arrange for Anna to be referred to TelCo’s occupational health service for an assessment. When referring Anna, Kate should provide a copy of her job description and as much additional information as possible about the role, as well as her own views on the recommended adjustments. In relation to homeworking, Kate should explain her concerns about its potential effect on Anna’s job and the cost and ask if there are other possible adaptations that TelCo could make, to help Anna return to work.

The occupational health doctor assesses Anna and produces a report confirming that Anna can return to work if certain adjustments are made. The report recommends that Telco carry out a workplace assessment and change Anna’s hours so that she can avoid the rush hour and work a three-day week for four weeks and a four-day week for four weeks, before returning to a five-day week. The report says that homeworking is not necessary if alternative arrangements can be made for Anna to rest in the office.

After reading the report, Kate decides that it would be possible to allow Anna to work altered hours and have a phased return to work. As the phased return is for a short period, TelCo agrees that it will pay Anna in full during this period. While looking into whether or not it would be possible for Anna to rest in the office Kate discovers that there is a bed in the sick room that Anna could use whenever it is not occupied.

How should Kate proceed?
Kate should meet Anna again to discuss her return-to-work options. During the meeting, Kate should explain why she feels that it would not be appropriate for Anna to work from home and offer her the alternative option of resting during the day in the sick room. Kate should explain that she is happy to agree to the other adjustments recommended by occupational health, and that she is prepared to agree that Anna return to work on this basis. Kate should give Anna the opportunity to consider her options.

Anna agrees to return to work on the basis Kate proposes.

How should Kate confirm the agreement?
Kate should document her meeting with Anna and produce a return-to-work plan. The plan should include details of:

  • the date on which Anna is due to return to work
  • the adjustments that will be made
  • the period during which the adjustments will be effective; and
  • a review date.

Kate should ask Anna to confirm in writing that she agrees to the return-to-work plan, before she returns. As Anna’s pay is not affected by the temporary reduction in her hours there is no need to record changes to her terms and conditions.

Anna returns to work in May in accordance with the agreed adjustments.

Does Kate need to take any further action when Anna returns to work?
Once Anna is back at work, Kate should arrange for her workstation to be assessed to ensure that necessary adjustments can be made. TelCo should also carry out a risk assessment to examine whether or not there is any risk to Anna or any other employee. The Health and Safety Executive recommends (on its website) that risk assessments should be carried out when there are changes to the workplace or, in some cases, where an employee’s circumstances have changed (for example where he or she has had surgery).

TelCo should record the fact that the assessments have been carried out and implement recommendations.

After eight weeks, Kate calls Martin to ask him whether or not she can ask Anna to produce a note from her doctor confirming that she is now fully fit to work.

What advice should Martin give Kate?
Martin should explain that fit notes do not include an option for doctors to advise patients that they are “fit for work” (unlike sick notes, which precede fit notes). However, Anna should return to her doctor because her original fit note stated that he wanted to assess her fitness for work after an eight-week period. If her doctor believes that she is fully fit to work as normal, without adjustments, he will not issue another fit note.

If Anna’s doctor believes that she is not yet fully fit to work, he will issue another fit note stating either that she is “not fit for work” or that she “may be fit for work taking account of the following advice”. If he chooses the latter option he can, again, suggest adjustments that would allow Anna to remain working, which Kate would need to consider.

Judith Harris is a legal director with Addleshaw Goddard.


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