HCR Law Events

1 November 2022

Fit Notes – all change!

New regulations are changing how statements of fitness for work, also known as “fit notes” can be issued. These form part of the government’s wider proposals following a consultation focussed on reducing ill-health related job loss.

The latest changes came into force on 1 July 2022 and apply across England, Wales and Scotland. Previously only doctors had authority to issue fit notes but the new regulations empower other healthcare professionals to authorise these statements. Registered nurses, occupational therapists, pharmacists and physiotherapists are now authorised.

Changes in April of this year enabled fit notes to be issued digitally, rather than requiring a “wet ink” signature.  Instead, an authorised professional’s name and profession included on the form will suffice.

The aim of these changes is to reduce the workload for doctors, including GPs who are usually the primary signatories of fit notes.

The government, in its guidance for employers on fit notes, has warned employers that new and previous versions of the fit notes may both be legally valid for a period of time whilst GP systems are updated.  However, neither the regulations or the guidance give detail as to how long that period will be and the guidance has not yet been updated to take account of the changes coming into force from July.

Potential risks for employers

The Minister for Disabled People, Health and Work, suggested the changes would “make it easier for individuals to get the right support and advice they need…ensuring where possible that they are able to remain in work”.

However, these changes, if not handled correctly, may pose challenges for employers managing absence as it may make it easier for individuals to obtain a fit note.  These additional healthcare professionals will be less familiar with the process and arguably they will require further guidance and training to strike the right balance between improved accessibility for individuals to healthcare support and avoiding unnecessary delays to their return to work.

With fit notes now being issued digitally, without the requirement for a signature, the potential for fraud may be more significant. Employers concerned as to the genuineness of a fit note should contact the authoriser to make the necessary checks.

Further reforms on the horizon

The government’s wider proposals to reduce ill-health related job loss includes further changes to fit notes in the future, including:

A new interactive version of the fit note which will provide advice and support for suggested workplace adaptations or modifications, based on clinical conditions, to encourage work and health discussions between unwell staff and employers;

An e-learning training module to be developed by Health Education England for healthcare professionals to provide fit notes;

Embedding electronic fit notes in hospital systems and encouraging hospital doctors to issue fit notes to patients in their care;

Consulting with employers regarding their use of fit notes as medical evidence and considering whether further reforms can be made.

Key points for employers:

Fit notes are not designed to provide employers with detailed medical advice. Any advice on a fit note is not legally binding on an employer, its status is advisory only. If further advice is required, employers should obtain a separate report either from the employee’s GP or other healthcare professional, or from an occupational health adviser.

Employers are responsible for ensuring that any adjustments suggested to an employee’s work in a fit note are appropriate and do not pose a risk to the employee. Proposed adjustments should be discussed with an employee and a risk assessment carried out, if necessary.

The final decision on whether to implement any adjustments proposed on a fit note, or as a result of a health condition disclosed on a fit note, lies with the employer.

However, if the employee is likely to mee the definition of ‘disabled’ under the Equality Act 2010, employers should consider reasonable adjustments to their working environment. A failure to do so risks a disability discrimination claim being brought.

Employers should be conscious of the enhanced data protection obligations relating to employees’ health information, which will amount to special category personal data.

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About the Author
Catherine Mitchell, Partner

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