Although the ‘fit note’ – the new format of the Med 3 form replacing the old ‘sick note’ – has been in use for almost 6 months, research suggests that employers are struggling to fully get to grips with it.

The fit note was designed to create greater dialogue between employer and employee about an employee’s health condition to enable the employer to have more control over the way that sickness absence affects their business. However, areas of uncertainty still remain and employers appear unsure how to respond to advice given by a GP on the fit note.

The fit note differs from its predecessor the Med 3 as it allows GPs to suggest a return to work with adjustments through the introduction of a new option: "May be fit for work taking account of the following advice". If the GP completes this option, they should also describe the functional effects of the employees condition, with the option of setting out suggested temporary arrangements which could help them back to work, such as a phased return, altered hours, amended duties or workplace adaptations.

If an employer is not able to facilitate a change or adjustment, the GP’s advice on the statement should be used as if the doctor had advised that the employee was “not fit for work”.

Employers that work with occupational health practitioners may disagree with the GP’s advice. But if the employee’s condition constitutes a disability under the Disability Discrimination Act the employer will have a duty to make reasonable adjustments in any event. Employers duties under the Disability Discrimination Act remain unaffected and will continue to apply.

The new fit note will not give doctors the option to deem a patient “fit for work”. The doctor will indicate on the note whether or not they need to assess their patient’s fitness for work again, making the need for a ‘fit for work’ option unnecessary. A ‘fit for work’ statement is not generally needed for employer liability insurance reasons, and it is the employer’s responsibility to carry out a risk assessment when an employee returns to work to ensure there is minimal risk to the employee and others in the workplace. There may also be existing industry procedures to ensure the fitness of an employee e.g. for drivers.

It is important for employers to note that comments given by a GP on a fit note are not binding and are for advisory purposes only. Therefore where a GP advises that an employee is “not fit for work” for a designated period of time but the employee and employer agree that it is appropriate for the employee to return to work sooner, and the employer can support this, then the employee can return to work before the end date stated on the fit note. It is not necessary for the employee to return to their GP to confirm that they can start work in these circumstances.

It is unlikely that the new fit notes will make much difference in practical terms, so employers wishing to tackle sickness absence at work should continue to:

• encourage dialogue between the employer and employee;

• make it clear that they want to try to get the employee back to work;

• give support including, where appropriate, adjustments such as a phased return, to help the employee get back to work;

• consider referral for an independent assessment from a specialist doctor or occupational health expert where appropriate; and

• provide appropriate training for line managers.

Peninsula clients who receive a fit note stating that an employee may be fit should contact our 24 Hour Advice Service on 0844 892 2772 to discuss their options.