It is estimated that the cost to the UK economy from absence and unemployment due to ill health is around £100bn each year and managing sickness absence is a problem that every business faces to varying degrees from time to time.

To tackle the sick note culture, the Government commissioned a thorough review of the sickness certification process and the management of health in the work place. The subsequent report, published in March 2008, recommended the introduction of electronic “fit notes” to replace the existing paper based certificate system. It is intended that this will come into force on 6 April 2010, despite the fact that most business are unaware of how this will impact them and their approach to managing sickness absence.

The new regime
The intention is that the fit note will shift the focus on to the fitness of the employee rather than their sickness, as the electronic form used will give doctors the option of indicating that the individual may be fit for some work if certain advice is taken account of.  The doctor can select from a list of common changes which could be made to an employee's job role to help facilitate a return to work. These include:

• amended duties
• workplace adaptations
• a phased return
• altered hours.

Employers’ obligations
Whilst doctors may make a recommendation, employers are not required to follow it. This acknowledges that it is the employer, in consultation with their employee, who is best placed to take the decision as to whether they can make any changes to facilitate a return to work.

If an employer is not able to make a change, a revised certificate is not necessary. The individual will be regarded as having a health condition preventing them carrying out their current role and will still be eligible to receive any sick pay entitlement that they may have outstanding.

Will fit notes help employers?
Whilst the theory behind fit notes is to be applauded the jury is still out on whether they will have any material benefit. A major criticism is that GPs are not occupational health specialists and do not have sufficient training to give an informed assessment of an individual’s work related capabilities. For example, where an employee is suffering from back pain a GP will be reluctant to determine what they can or cannot lift. It is estimated that currently only 5% of GPs follow current guidance on sick leave, with employees often being signed off for far longer than the time recommended.

Therefore, unless an employer is obliged to make reasonable adjustments in order to comply with their duties under the Disability Discrimination Act, this may not prove to be such a simple solution in helping people back to work.  It could also be a source of friction in the employer/employee relationship particularly where one party believes the employee is fit to return to work whilst the other does not.

Practical points
• If an employer is not able to accommodate an adjustment it would be wise to maintain a paper trail to evidence the thought process in the case of future Tribunal claims for discrimination or constructive dismissal.

• In view of the potential issues mentioned above it remains essential for employers to control the absence management process and have in place a detailed sickness policy which clearly set out trigger dates for action, and for managers to follow those procedures rigorously.

• Dialogue between the employer and employee will be crucial to make any decisions regarding a return to work clear. Where an employer is unsure on what action to take, perhaps because of the nature or length of the illness concerned, they should consider referring the employee to an occupational health expert or specialist doctor for specific advice.