Fit Note Changes & Proving Employee Sickness

Employees can now be signed off work when sick by nurses, occupational therapists, pharmacists and physiotherapists who can sign statements of fitness for work, also known as a GP fit note. This change has been brought in to ease the burden on GPs.

But what might this mean for employers who suspect that a worker is exaggerating their condition for some reason: perhaps to avoid performance management or disciplinary hearings, or to take advantage of contractual sick pay? Employment Associate Deborah Scales explains. 

Transcript

 0:03  Deborah Scales
Hello I'm Deborah Scales an employment lawyer with Clarkslegal and this podcast is about new fit notes and proving an employee's fitness for work. From the first of July, nurses, occupational therapists, pharmacists and physiotherapist can now all sign statements of fitness for work, also known as GP fit notes. The change in the law has been brought in to ease the burden on GPS. But this is arguably going to increase the opportunities for an employee to be signed off sick. So what might that mean for employers who suspect that a worker is exaggerating their condition for some reason, maybe to avoid performance management or disciplinary hearings or to take advantage of contractual sick pay. The warning to employers from recent tribunal cases is not to make negative assumptions about an employee's state of health without proper investigation first, in the case of seeing a metro line West limited, Mr. Singh succeeded with his Tribunal claim for constructive dismissal after metro line withheld is contractual sick pay. The brief facts are these Mr. Singh was signed off sick following an invitation to a disciplinary meeting. metro line believed that he was trying to avoid the hearing and so put him on SSP instead, there was a clause in Mr. Singh's employment contract that allowed metro line to withhold company sick pay if following an investigation, his absence was found not to be genuine. The mistake metro line made was failing to carry out that investigation, which meant they were in breach of Mr. Singh's contract. The question for the tribunal was where the metro lines breach was so serious that it went to the root of the employment contract and titling Mr. Singh to resign metro line tried defending Mr. Singh's constructive dismissal claim by saying that it withheld His contractual sick pay to encourage his participation in the disciplinary process. This argument was rejected by the employment Appeal Tribunal who decided in favour of Mr. Singh, the EA T held that Metro lines decision to withhold his contractual sick pay caused a substantial reduction in Mr. Singh's earnings and was therefore a fundamental breach of his contract. His claim for constructive dismissal was made out metro line may not have lost this breach of contract claim. If they had carried out that investigation into whether Mr. Singh's sickness absence was genuine. That said making judgments about an employee's state of health and their fitness to carry out their role also carries risks and complications for the employer, especially where there is a potential disability issue. That's the subject of a separate podcast. In the meantime, employers should consider taking legal advice before trying to withhold either contractual or statutory sick pay because they suspect the sickness is not genuine. Our team of employment lawyers are on hand to help don't hesitate to contact us. Thank you for listening