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.
Understanding the rules relating to fit notes is an important part of being a reputable employer, from the circumstances in which you are entitled to be given a fit note, to what to do if an employee hands you a fit note and whether the advice set out in that note must be followed.
In this guide for employers, we explain the rules on fit notes at work, including how you can use the fit note to support effective absence management practices.
A fit note is a ‘statement of fitness for work’, typically from an employee’s GP or hospital doctor although, from July 2022, updates in the law around fit notes mean that these notes can also be issued by a nurse, occupational therapist, pharmacist and physiotherapist. This means that an employee may now give you a fit note that has been issued by someone other than a doctor, as long as these healthcare professionals are discussing the employee’s fitness to work with you and are treating your employee under NHS services.
The fit note will tell you when the employee was assessed, the nature of their health condition affecting their fitness for work, their prognosis period and if they are likely to need another fit note when their existing one expires. As an employer, fit notes can provide you with invaluable insight into the short-term or long-term health of an employee on sick leave, from the nature of their illness or injury to how long they are likely to be absent from work. It will also often contain advice on how to support an employee’s early return.
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.
If an employee is off on sick leave for more than 7 consecutive days, including weekends and bank holidays, they must give you a fit note from an appropriate health professional. If they are off work sick for 7 days or less, they do not have to provide any medical proof of their illness or injury, where the employee can self-certify their sickness absence instead.
Where provided, the fit note will tell you whether your employee’s treating practitioner thinks that the employee is not fit for any work or if they may be fit for some work, taking into account certain advice and subject to your agreement to follow that advice. It will also tell you if your employee is expected to be fit for work once their fit note expires.
There are essentially 5 things that you must do when given a fit note by an employee: 1) check whether the employee has been assessed as ‘not fit for work’ or ‘may be fit for work’; 2) check how long the fit note lasts, and whether the employee is expected to be fit for work after that date; 3) if potentially fit for work, discuss the fit note with the employee to see if agreement can be reached as to what changes can be made to facilitate their return to work; 4) if the employee is ‘not fit for work’ or you cannot agree on any changes, use the fit note as evidence to instigate your sick pay procedures; and 5) take a copy of the fit note.
Importantly, the fit note is the property of your employee, where they should be allowed to keep the original, as they may need this for benefits or other purposes. However, if the fit note has been sent to them via SMS, e-mail or mobile app, they may not have a paper copy.
If the employee is potentially fit for some work, there are 4 tick boxes that can be selected by the healthcare professional issuing the note, including a phased return to work, amended duties, altered hours and workplace adaptations. There is also a box which allows the practitioner to comment on the functional effects of the employee’s condition.
If the healthcare professional has ticked the box for a phased return to work, this is suggesting that the employee may benefit from a gradual return to the workplace, so on a part-time basis, as well as a gradual return to their previous duties. The boxes for amended duties and altered hours break these aspects down individually. The box for amended duties suggests that the employee may benefit from doing different duties at work for a period of time, such as avoiding any heavy manual lifting, whilst the box for altered hours suggests that the employee may benefit from changing their work times or the number of hours worked, for example, by working staggered hours or by working part-time.
Finally, if the healthcare professional has ticked the box for workplace adaptations, this is suggesting that the employee may benefit from certain changes to the physical aspects of the workplace or their working environment. This could include the provision of specialised equipment, such as an ergonomic chair or keyboard. It could also include things like the provision of training or additional supervision, or arranging for a mentor or work buddy.
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.
If your employee is assessed in their fit note as potentially fit for work, the note will simply provide you with a basis to discuss with them what changes might be made to help them. However, any advice given in the fit note is not binding on either you or the employee, where you are not legally required to make any changes to take account of that advice. You and the employee are both free to explore other options, although agreement must be reached as to what changes can be made to support them if they are to return to work early.
If agreement cannot be reached with the employee, they must continue to be treated as unfit for work until expiry of their fit note. The employee will not be required to obtain a further note from their treating practitioner if agreement cannot be reached. However, if they continue to be unfit for work beyond the date in their existing fit note, they will need to be re-assessed by a health professional and issued with a new note. Additionally, if the employee is suffering from a long-standing condition that amounts to a disability, you are under a statutory duty to make any reasonable adjustments to ensure that your employee is not at a disadvantage in doing their job when compared with non-disabled workers.
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.
Generally speaking, you should accept a fit note at face value as proof of an employee’s illness or injury, and their unfitness for work. This means that if the fit note states that they are not fit for any work, they should be treated as such until expiry of that note.
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.
If you suspect that an employee is malingering, you must have credible evidence that casts clear doubt on whether the employee is genuinely unfit for work. In these cases, you may want to secure the employee’s consent for them to be assessed by an independent medical expert. This independent evidence can then be used to challenge the assertion in the fit note that they are unfit for work, forming a potential basis for any disciplinary action.
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.
The advice provided in a fit note will typically be about your employee’s fitness for work in general, rather than specifically related to their current job role. This means that, especially in cases of long-term sick leave, it is often advisable for occupational health to assess the employee and provide some specific work-related suggestions that may help them. In some cases, these suggestions may differ to the advice given in the fit note, but will often better reflect the employee’s occupational needs in the context of their job role.
By carefully assessing any guidance given, both in the fit note and by occupational health, you can work together with the employee to ensure that their health needs are met to facilitate their early return to work. The employee may even have their own suggestions as to what changes they think will provide them with the most effective support.
Supporting someone with a health condition to return to work can save your business money and minimise disruption caused by sickness absences, where often a few simple changes can help an employee come back to work earlier. The fit note will provide a useful starting point as to what changes can be made to facilitate the employee’s early return, although it is also important to maintain open lines of communication with the employee.
If both you and the employee agree to any changes set out in the fit note, then these changes can be implemented with immediate effect, but the effectiveness of these changes must still be carefully monitored. In some cases, you may need to adjust these changes, or introduce new ways of helping the employee, until a better solution is found.
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.
A fit note will last for as long as the dates set out by the issuing health professional. The fit note will ask the practitioner to comment on how long the employee will be unfit for work or may be fit for work. This will either be from the date of the employee’s assessment, or between certain start and end dates. These dates are inclusive, so a fit note dated 1 December to 15 December will no longer apply from 16 December onwards.
The issuing health professional will also be required to specify whether or not the employee will need to be assessed at the end of that period. If they think that the employee is still unfit for work on re-assessment, the employee will be issued with another fit note.
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:
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.
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.
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.
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.
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.
An employee should not be subjected to any detriment, including being dismissed, for giving you a fit note. In some cases, where an employee is on long-term sick leave, penalising an employee for being off sick could be construed as unlawful disability discrimination. However, if you are unable to keep an employee’s job open for them in the long-term, you may be able to fairly dismiss an employee on grounds of capability, provided you have explored all possible adjustments that could be made to support their return. You must also have followed a fair procedure, providing the employee with an opportunity to have their say. In most cases, dismissal should only ever be used as a last resort.
In contrast, if you have clear evidence of an employee submitting a fake fit note, or you think that any note may have been issued by a health professional on false grounds, this becomes a misconduct matter for which the employee may be dismissed. This could be where, for example, an employee is signed off on work-related stress leave but you have clear and credible evidence of them running a side business. However, you must always exercise caution if you suspect an employee of malingering, where you must not make unfounded allegations before you have fully investigated the matter. If you falsely accuse an employee of dishonesty, they may feel forced to resign and claim constructive dismissal.
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.
[sc_fs_multi_faq headline-0=”h2″ question-0=”Does a fit note have to be signed?” answer-0=”A fit note must be signed by the doctor. The note can be handwritten or printed, but it must be signed to be valid.” image-0=”” headline-1=”h2″ question-1=”Can an employer disregard a fit note?” answer-1=”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.” image-1=”” headline-2=”h2″ question-2=”Can an employer insist on a fit note? ” answer-2=”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.” image-2=”” headline-3=”h2″ question-3=”When is a fit note needed? ” answer-3=”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.” image-3=”” headline-4=”h2″ question-4=”Does an employer have to accept a fit note?” answer-4=”An employer should generally accept a fit note at face value, although they may be able to instigate disciplinary proceedings for misconduct if they believe that the fit note is in some way fraudulent or based on false premises.” image-4=”” headline-5=”h2″ question-5=”Can an employer question a sick note?” answer-5=”An employer can question the validity of a sick note if they believe that an employee is fit for work, contrary to any advice from the employee’s GP, where this would need to be treated as a potential disciplinary matter.” image-5=”” headline-6=”h2″ question-6=”What are the new rules regarding sick notes?” answer-6=”From July 2022, the new rules regarding sick notes means that they can now be issued by nurses, occupational therapists, pharmacists and physiotherapists. This is in addition to an employee’s GP or hospital doctor.” image-6=”” headline-7=”h2″ question-7=”Can an employee return to work before expiry of their fit note?” answer-7=”Your employee can come back to work at any time, even if this is before their fit note expires. They do not first need to go back to their healthcare professional. It is not uncommon for people to come back to work before they are 100% fit, where sometimes work can actually help to facilitate recovery and maintain wellbeing. However, employees with ongoing health conditions may have limits on what they can do at work, where they may not be able to resume their normal duties or working hours. This means that adjustments may need to be made to their working conditions, and those adjustments monitored, to ensure that being back at work does not worsen their condition. You may not only need to heed any advice set out in the fit note, but also carry out a risk assessment to discharge your legal duties to ensure the health and safety of the employee.” image-7=”” count=”8″ html=”true” css_class=””]
Last updated: 17 October 2022