The following fit note guidance will help you as an employer to understand the rules relating to fit notes, and how you can use the information from a fit note to most effectively help your business and your employees when absent from work through illness.
As an employer or line manager, the fit note can provide you with invaluable insight into the short or long-term health condition of an individual employee, from the nature of their illness to how long they are likely to be on sick leave. It can even set out ways in which you can support their return to work.
What are the rules on fit notes?
If an employee is absent from work through illness for a period of more than 7 consecutive days, including non-working days, such as weekends and bank holidays, they are obliged to provide you with a fit note.
Also known as a ‘statement of fitness for work’, this is the official document issued by a GP or hospital doctor to certify an employee’s ability to return to work. The fit note tells you whether your employee’s practitioner thinks they are not fit for work of any kind, or whether they may be fit for some work.
The fit note will set out when the employee was medically assessed, the nature of their condition that affects their fitness for work, the prognosis period, and whether they are likely to need a new fit note when their current one expires.
When does an employee need a fit note?
If an employee is absent from work for a period of 7 days or less, they are not required to provide you with medical proof of their illness by way of a fit note. It is only a legal requirement where they have been off sick for more than 7 days.
Where the period of sick leave has been less than a week, on their return to work you can ask an employee to self-certify that they have been off sick, together with the reasons why. This could be done by completing a self-certification pro forma or providing you with a written account explaining the details of their absence. They could also complete the government form SC2 statement of sickness.
Doctors cannot issue fit notes during the first 7 calendar days of sickness absence. If you require medical evidence from an employee for the first 7 days, it is your responsibility to arrange and pay for this.
COVID concession from 17 December 2021
The Statutory Sick Pay Regulations 2021 are now in force. The new rules have been implemented by the government to allow workers to self-certify for the first 28 days of sickness absence, and will apply only to absences due to illness that started either before 17 December 2021 and on that date lasted no longer than 7 days, or where the period of sickness absence started on or after 17 December 2021 and lasts until 26 January 2022. The measure has been implemented to alleviate pressure on GPs to issue fit notes during the pandemic and is due to end on 26 January 2022, although some believe this may be extended.
How are fit notes used in return to work procedures?
The fit note will set out whether the employee is fit to return to work and when, including advice as to what changes can be made by you to facilitate their return. There may also be recommendations, by way of tick boxes, indicating the kind of general adaptations that might help in their return. These include:
- A phased return to work, ie; a gradual increase in work duties or hours
- Amended duties, ie; changing their normal work duties
- Altered hours, ie; changing their work times or total hours
- Workplace adaptations, ie; changing physical aspects of the workplace, including the provision of specialised equipment.
There is also a comments box for the doctor to provide more detailed fit note guidance as to the functional effects of the employee’s condition, including what the employee can or cannot do at work.
The advice in the fit note will be about your employee’s general fitness for work, not just related to their current job role. This gives you maximum flexibility to discuss possible changes to support them in coming back to work.
Is the advice in a fit note binding?
The advice given in a fit note is advice for the employee and is not binding on you as the employer. Any suggested adaptations are only with your agreement and where available, so feel free to explore other options.
However, where an employee is certified potentially fit for work, ie; taking into account the advice in the fit note as to what changes need to be made to support their return, if agreement cannot be reached the employee must continue to be treated as unfit for work. They do not need to obtain a further fit note.
Generally, by carefully assessing any guidance given, you can work together with an employee to ensure their physical and mental health needs are met to help with their return to work and/or prevent recurring absences.
How can fit notes help with reasonable adjustments?
Where an employee’s delay in returning to work is related to a disability, by law you are required to make reasonable adjustments in the workplace to ensure that they are not substantially disadvantaged when carrying out their job role.
An employee should be treated as having a disability where they have a physical or mental impairment that has a substantial and long-term effect on their ability to carry out normal daily activities. The impairment is long-term if it’s lasted for at least 12 months, is likely to last this long or is recurring.
For employees suffering from a disability, the fit note can be a useful starting point to gauge their progress and recovery, and to assess any measures that may need to be implemented to remove any disadvantage in doing their job.
That said, even though the employee on long-term sick leave will be regularly re-assessed by their GP, there is often insufficient information within the fit note to properly assess the types of adjustments that need to be made. Most GPs are not trained in occupational health, have a limited amount of time to see patients and often have only the patient’s account of their symptoms.
You may want to consider asking the employee on long-term sick leave to undergo an occupational health assessment. This will provide you with an objective review of their fitness for work, with specific recommendations as to the types of reasonable adjustments that are available and likely to assist.
In the event that you fail to make any reasonable adjustments to support an employee’s return to work, this could amount to disability discrimination.
What are common issues for employers regarding fit notes?
Generally, a fit note should be accepted at face value as evidence of an employee’s illness and proof of unfitness for work. However, there may be some instances where you suspect an employee of malingering.
In cases where you have clear and credible evidence that casts some doubt on whether the employee on long-term sick leave is genuinely unfit for work, you may want to secure their consent to undergo an independent medical assessment. This can then be used to challenge the employee’s assertion that they are incapable of work, forming the basis for disciplinary action.
For short-term absences, you could initiate a return to work interview to ask the employee about the nature and extent of their recent illness, especially where you suspect they have fabricated or exaggerated their symptoms. You can use their fit note or written self-certification to cross-reference their responses.
However, you must always exercise caution where you suspect an employee of malingering. You should not jump to conclusions or make any unfounded allegations. If you falsely accuse an employee of fraudulently taking sick leave, this could easily breach the implied term of mutual trust and confidence, resulting in their resignation and a claim for constructive dismissal.
It is important to bear in mind that any genuine absence from work is not a form of misconduct and should be dealt with as a capability issue. Although you can lawfully dismiss an employee on long-term sick leave because they are no longer able to do their job, the onus will be on you to show why you were unable to make any reasonable adjustments. Any failure to do so could result in a claim for both unfair dismissal and unlawful discrimination.
Can an employee return to work before their fit note date?
The fit note will set out the period during which an employee is unfit for work. The advising medical practitioner will also state whether or not the employee’s fitness for work will need to be further assessed at the end of this period.
If no further assessment is required, and unless the employee reverts back to their GP for a further fit note, for example, if their condition deteriorates, this provides an end date for their period of sick leave. The period that the fit note covers will either be from the date of the assessment, or between particular start and end dates, where the dates are inclusive.
An employee may be able to return to work before their fit note end date if they have made a speedier recovery than anticipated, however, as the employer, you should take care not to exert any pressure or undue influence on this decision.
In practical terms, having a sick employee at work is not good for their individual wellbeing, or for productivity and performance for your business. In legal terms, the employee may feel forced to resign if they find they are unable to cope, or even suffer an exacerbation of their condition, exposing you to possible legal action for a failure to ensure their health and safety.
In cases where an employee elects to return to work prior to their fit note end date, you should take account of any advice in the fit note and consider whether a risk assessment is necessary. By carrying out a suitable risk assessment you will discharge your legal duties to ensure the health and safety of the employee.
However, to ensure that you are not in breach of your Employers Liability Compulsory Insurance you should always contact your insurers directly.
Can an employer refuse a fit note?
The fit note guidance about whether your employee is not fit for work or may be fit for work is classed as advice, where it is for you to determine whether or not to accept this at face value.
You may suspect an employee is fit for work, contrary to the advice given in the fit note. Equally you may form the view that your employee is not fit for work, either after their fit note expires or even where they have not been issued with a fit note because their doctor believes them to be fully fit and well.
In situations like this you may choose to further investigate the basis (or absence) of the fit note by gathering your own medical evidence about your employee’s fitness for work from other doctors and healthcare professionals.
You are also within your rights to give this other evidence precedence over the advice in the fit note. However, if the employee decides to formally challenge your decision, you may need to demonstrate to an employment tribunal why the alternative source of evidence was more acceptable to you than the fit note.
If you choose to act contrary to the advice given in a fit note, for example, where it states your employee should avoid lifting and you give them work that involves manual handling, you may find yourself liable to legal proceedings. It is important in these cases to carry out a risk assessment to accommodate the clinical judgment in the fit note and to provide alternative medical evidence to support your decision to reject that advice.
Are there any alternatives to the fit note?
In some circumstances, the employee may themselves produce a document akin to a fit note from a different health professional, such as a physiotherapist or occupational therapist. This is known as an Allied Health Professionals (AHP) report. However, the employee will need your consent to rely on an AHP report as an alternative to producing a fit note from their GP or hospital doctor.
Further, if your employee has been off work sick for 4 weeks, or their GP thinks they are likely to be off work that long, they can refer them to the government’s Fit for Work programme. The employee will be assessed by an occupational health professional and a Return to Work Plan will be prepared, providing advice on interventions and steps to support an employee’s return.
The Return to Work Plan will be shared with the employee’s GP and with you as their employer. With your consent, this can be accepted as evidence of sickness absence in the same way as a fit note. You will not need to ask your employee to obtain further fit notes from their GP.
As an employer you can make a referral for a Fit for Work assessment if the GP has not already done so after 4 weeks.
Are fit notes needed for a sick pay claim?
If an employee is not fit for work or you cannot support an employee’s return to work, you will need to use the information provided in the sick note to assess whether an employee is eligible for statutory sick pay (SSP). You can also use the fit note as evidence for any contractual sick pay procedures.
If your employee’s fit note states that they may be fit for work but you agree that they should remain off work, they can still receive sick pay because in these circumstances you treat the fit note as if it stated not fit for work.
An employee may be eligible for SSP if they have been absent from work through illness for 4 or more consecutive days, including non-working days. You will need to start paying SSP from the fourth qualifying day, where you would not usually pay SSP for the first 3 days.
The employee’s entitlement to SSP will only trigger where notice of their illness is given in accordance with any timeframe specified under the terms of their employment contract, or within 7 days where no prior notice period has been set. You cannot withhold SSP if the employee is late in sending you a fit note.
If SSP cannot be provided or where the SSP entitlement is ending, you will need to provide the employee with form SSP1 to support any claim for social security benefits where they continue to be absent from work through sickness.
How are the rules differing due to Covid-19?
Special provisions apply where an employee is off work and self-isolating due to:
- Having or living with someone with COVID-19 symptoms
- Testing positive for COVID-19 or living with someone who has tested positive for COVID-19
- Being notified by NHS or public health authorities that they have been in contact with someone with COVID-19
- Being advised by a medical practitioner to self isolate before having a health procedure
In such cases, the individual is entitled to SSP for each day of absence, starting from their first day of absence, not the fourth day as is the case for non-COVIDp-related absence.
Note that SSP is not available if the worker is self-isolating only because they are travelling back to the UK.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management, employee entitlement and employer statutory obligations. Working closely with our specialists in HR, we provide comprehensive guidance on fit notes, sickness absence and dealing with the return to work. For help and advice on a specific issue, speak to our experts.
Fit note guidance FAQs
Does a fit note have to be signed?
A fit note must be signed by the doctor. The note can be handwritten or printed, but it must be signed to be valid.
Can an employer disregard a fit note?
In its latest guidance, the Government has stated that employers may ignore a fit note. The fit note is to be considered advice and it is for employers to determine if they are to accept that advice.
Can an employer insist on a fit note?
The employee is to self-certify for the first 7 days of sickness absence. If off sick for more than 7 days, they should get a fit note from their doctor.
Last updated: 17 December 2o21