An unfit fit note system? What can employers do?

BBC research raises fresh questions about the adequacy of the system, not least the reliability of fit notes whilst employers try to manage sickness absence issues.

The BBC’s survey identified that:

• The majority of GP respondents to the survey had never refused a request for a fit note
• Many GP’s believe the provision of fit notes should not be part of their role, citing pressure from patients, and the conflict between a wish to support their patients and having to act as judge as to their fitness to work.
• More than 956,000 fit notes last year cited mental health and behavioural disorders as the underlying reason, far exceeding any other condition with GP’s recognising the difficulty in evaluating “hidden” illnesses

The recent Government commissioned Keep Britain Working review and The Royal College of GPs have acknowledged that GPs are often not best placed to determine whether someone is able to work or not, perhaps having limited information about the work environment of their patient.

How should employers manage long-term sickness absence?

All of this casts doubt on the reliability of fit notes. So, where does this leave an employer trying to manage long term sickness absence? What options does an employer have if it questions the accuracy of a fit note?

The starting point must be to take an objective and compassionate view as to the situation. Is there any credible evidence that suggests an employee is not genuinely unfit or is it unkind gossip or even the unconscious stigma that still surrounds mental health? If there is nothing that properly substantiates an employer’s doubts, then it will be unwise to question or challenge the fit note.

If there are genuine reasons to doubt the fit note, what can an employer do?

The starting point should be to speak to the employee to discuss the position and seek clarification. There may be a simple explanation for any discrepancy.

The next step would be to seek the employee’s permission to contact the GP to request further information regarding the employee’s health and the impact on their ability to work. This may not be straightforward. The employee may not consent, in which case the employer may need to continue to manage absence without further input from the GP. There could be delays. The GP could be reluctant to provide an objective and full report, not least because they remain reliant largely on the limited information available to them and possibly feel conflicted by the desire to support their patient.

An alternative would be to seek a review by a third party perhaps through a referral to an occupational health professional. This review should marry both an assessment of the employee’s health and the impact on their ability to perform their particular job role. Again the employee will need to consent to a referral and potentially consent to the OH professional accessing their medical records. Should the employee not consent, again it will be a case of warning the employee it will be necessary to manage the absence without further input from OH or medical professionals.

Another option is to seek a report from an independent medical or healthcare professional examiner. This will again need the employee’s consent and will ultimately need to be weighed in the balance alongside the other information available to the employer.

Conclusion

The BBC survey and existing Government reviews really do cast doubt on whether the fit note system is currently fit for purpose. Whilst changes to the fit note system may be due in the distant pipeline, for the time being there are routes for an employer to make reasonable enquiries to explore concerns they have as to the reliability of the information being provided to them through the existing system.

For more information about any of the issues covered in this update, or if you are an employer and need further advice on managing sickness absence in the workplace, please get in touch with one of our employment solicitors today.