What do the new rules on fit notes mean for patients and employers?

First things first – what is a fit note?

The fit note (or Statement of Fitness for Work) is an official statement provided by a doctor (usually a GP) to patients whom they consider are either ‘not fit for work’ or ‘may be fit to work’ only if certain accommodations or adjustments can be made. They normally include an explanation of a patient’s illness and how this affects their ability to do certain tasks at work.

Employees are required to provide a fit note to as evidence if they are absent from work due to sickness or ill health for more than seven days, to allow their employer to pay them company and/or statutory sick pay.

What does the change in legislation on fit notes mean?

The new rules mean that from 1 July 2022 in England, Scotland and Wales registered nurses, occupational therapists and physiotherapists, as well as pharmacists working in general practice and hospital settings, will be able to legally certify and issue fit notes, whereas previously only doctors could do so.

Before providing a fit note, practitioners must still conduct a full assessment of a person’s fitness for work, they cannot be issued on request or over the counter.

The new legislation does not require employers to make any changes to their company sick pay policies or internal processes. However, organisations should ensure that all personnel responsible for managing employee absence are aware that they may start receiving fit notes from health practitioners other than GPs and that these should be accepted and used in the same way.

Why have these changes to fit note certification been brought in?

The new legislation follows previous changes made in April allowing fit notes to now be certified and issued digitally.

The Department for Work and Pensions have stated that together these changes will help to streamline the process of obtaining a fit note, reduce pressure on doctors (especially GPs) and ‘support and empower better conversations about work and health between employers and staff.’

What benefits will the changes bring?

The changes to the rules on who can certify fit notes have been accepted as a generally positive move and could offer real benefits for patients and employers, namely ensuring that both parties receive more effective guidance on how to manage their health at work.

Gone are the days when doctors were in sole charge of directing patient care, which is more and more frequently now being led by teams of other healthcare professionals, who may actually be much better placed to advise on people’s fitness to be at work. Where a patient has, for example, been under the regular care and treatment of a specialist nurse or a physiotherapist for their condition, these practitioners will likely have a much closer relationship with them and a better understanding of how their health impacts them day to day than would their GP, who may only see them sporadically. They will therefore also likely have a better understanding of the patient’s job role and be able to have more open and constructive discussions with them about their health and work and the activities that they can and cannot do. As such, they will be able to provide much more tailored advice to the patient’s employer about what support they are likely to require to be able to stay in or get back to work than a GP, whose recommendations will in any case often be based on a one-off telephone consultation with the patient or information passed to them by other healthcare professionals who see them more regularly.

Especially given the latest reports from the Office of National Statistics which indicate that absence levels are currently at their highest since 2010, these changes will also help to shift the burden of certifying sick leave away from already overstretched GPs, who are still struggling to tackle the COVID backlog, and will hopefully help to reduce delays in fit notes being issued.

What potential challenges do the changes pose?

Whilst the legislation changes are expected to bring many benefits, they have, understandably, also thrown up a number of questions, the key one being how to ensure that fit notes continue to be used correctly now that more people are able to certify them.

The main purpose of introducing the fit note originally was to encourage greater focus on keeping people in work where possible, in recognition both of the fact that illness is not always a barrier to working and of the benefits that work can have, in many cases, in supporting a people’s recovery. However, studies have reported inconsistencies in the use of fit notes among GPs and the quality of the advice provided.

The SOM has commented that fit notes are rarely used to their full potential and that doctors still tend to opt more for the ‘not fit for work’ option, rather than offering employers sufficient information to help them effectively manage their employees’ health issues and potentially allow them to return to work sooner. Indeed, it remains the case that over a third of fit notes are issued for periods of five weeks or longer, by which time, as the SOM further points out, around 20% of people will never return to the workplace.

Some of the reasons cited for these issues include the pressure often felt by GPs to agree to patient demands for a fit note to avoid conflict and a lack of confidence in advising on possible workplace adjustments. During the assessment process, doctors must rely on the information provided by the patient about their job role and work environment, making it difficult for them to know what the employer might consider reasonable or viable when it comes to implementing changes to support an earlier return to work.

While other health practitioners may feel more comfortable talking with patients and be able to have ‘better conversations’ with them about their health and work, it is likely that they will still encounter many of these same issues and this could create even more potential for inconsistency around decisions on sickness certification.

Another concern for many employers will be whether they can trust the validity of fitness recommendations issued by health professionals other than GPs. For the reasons discussed above, these concerns are likely to be unfounded. However, it is important to note the stipulations put forward by the BMA that practitioners with the power to certify and issue fit notes should only do so if it is ‘within their professional scope of practice’ and they have been given the necessary skills and training.

While the government has said that further training and guidance is due to be issued by Health Education England to reduce any risks in this regard, we feel that all of these points serve to highlight the crucial role played by Occupational Health and reinforce the importance for businesses of seeking specialist OH advice when it comes to making decisions about how to manage employees’ health at work. We therefore support the SOM’s recommendation that fit note certification should act as a potential referral point to an OH professional. OH clinicians specialise in the relationship between work and health and they have expert knowledge of a broad range of workplaces and industries (and the various pieces of legislation and specific regulations that may be at play) that general doctors and other health practitioners often lack. They also have a much more direct relationship with employers, meaning they have access to all the relevant information from both parties about the employee’s job role and what is and isn’t possible to accommodate in terms of adjustments. Lastly, they are much more practised at striking a balance between the needs of both the employee and the employer, so they can offer more robust advice while minimising any risk of potential litigation.

Find out more at our free webinar

We know that organisations are likely to have lots of questions about the fit note changes, over and above those discussed in this blog, and that’s why held a webinar on Tuesday 19 July 2022 with Medigold Health’s Medical Director Dr Gareth Williams and our CEO Alex Goldsmith. Alex and Gareth discussed the wider implications of the new legislation and answered questions from the audience.

View the webinar.