Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses a recent case that has shed some light on the debate that a lot of employers are having around employees returning to the office from home working.
Anna Denton-Jones
Refreshing Law
The government has just published changes to its fit note guidance for employers and line managers. It even included a handy checklist so that employers can avoid painfully drudging through the lengthy (4,462-word) document. The checklist includes the necessary steps and information that employers should have at their disposal when an employee has been issued a fit note.
Firstly though, what is a fit note? It’s a note from a certified healthcare professional who has determined after consultation with an employee, whether or not they ‘may be fit for work’ or are ‘not fit for work’. A fit note allows employers to discuss with their employees any health conditions that may prevent them from undertaking their work as usual. It also gives employers the chance to have an interactive discussion with their employees to establish tailored measures suited to both parties going forward.
The changes to this guidance as of 2022 state that where these fit notes had previously been required to have a signature of ink, they are now moving forward (as we all are) to accepting just the name and profession of the issuer. This enables the fit notes to be received and sent digitally. The DWP also expanded their accepted list of healthcare professionals who can certify the notes to include nurses, occupational therapists, pharmacists, and physiotherapists. It should be noted that although digital notes are embedded in primary care settings (GP), they are not yet in secondary care settings (hospitals), and so a pre-printed note may still be used by employees recently discharged from hospital.
There are a number of general rules that surround fit notes, so I’ll just outline the important ones to familiarise yourself.
In the first 7 days of sickness, employees can self-certify. If your organisation requires medical evidence within this time, any costs incurred by the employee for accessing a healthcare professional will be yours to cover eg:- where there has been a pattern of absence say on a Monday and Friday and you tell the employee that any further absence on these days will require a fit note.
The length of a fit note can cover a maximum of 3 months at a time during the first 6 months of sickness. Any specific time decided will be determined by the clinical judgement of the healthcare professional.
Private (non-NHS) healthcare professionals can produce reports like a fit note which can be considered. Private medical certificates or the Allied Healthcare Professionals Work Report can be accepted with no further need to obtain a further note.
Fit notes can come in a variety of ways, whether that be computer-generated and printed out, or sent digitally to your employee. Digital fit notes will include a barcode so that they can be scanned by employers and added to sickness records.
Now onto the fitness for work assessment and what that means for employers. The healthcare professional will state whether the employee is fit for work or not, and the length of time that any adaptions are required/the amount of time the employee is unable to work for. If they ‘may be fit to work’, the healthcare professional will give general recommendations on adjustments to be made for the employee to work safely or return to work entirely. These recommendations are not binding and if the recommendations cannot be implemented given the nature of work, the fit note can then be used as evidence for sick procedures.
General adaptions you may choose to explore as an employer include:
While at first glance these fit notes may appear to be potentially obstructive, by supporting your employee to stay or return to work you may actually avoid absence costs and minimise disruption for your organisation. Having an open discussion with your employee about adjustments will serve to create a more trusting work relationship that can only benefit both parties!
Martha Regan
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing the new Flexible Working Act (which comes into force in July 2024). This video focuses on the processes that need to be followed under the new Act.
Anna Denton-Jones
Refreshing Law
You may be aware that the categories of people who are able to sign a Fit Note for the purposes of Statutory Sick Pay and other Social Security claims has been broadened with effect from 1 July 2022, so that pharmacists, physiotherapists, registered nurses and occupational therapists are now all able to sign Statements of Fitness for Work.
The old rules that such paperwork needed to be ‘wet’ signed by the GP have also been removed so it is now possible for the electronic generation of this paperwork in order to improve the way in which medical professionals are able to issue such documents. The Fit Note is still required to be signed and include the name of the healthcare professional who authorised it to be legally valid so a version that is blank isn’t genuine.
The Department for Work and Pensions has issued guidance for healthcare professionals which is called “Getting the most out of your Fit Note”.
It is interesting reading, in particular the instructions to medics to focus on fitness for work in general rather than fitness to attend a particular occupation, which suggests that it ought to be harder for somebody to achieve a state where they are unable to work at all, compared to being unable to perform aspects of their job.
The case studies are interesting as well. Particularly the fifth one called “relationship issues at work”. It gives the example of a patient complaining that she doesn’t get on with her manager, is feeling very stressed and wants to be signed off work. The medic determines in the consultation that although the situation is upsetting for the individual, they do not have a mental health condition and that they are fit for work. The medic then explains to the individual that they can see that she is being affected by work but is not in a situation where she should be issued with a Fit Note. The patient reacts badly and tells the medic that their manager has been really horrible to her and that she is finding it difficult to cope. The medic is directed to say that they appreciate that that may well be the case but to explain that the situation is not making the patient ill. If they were ill then they would be issued with a Fit Note and the medic would be acting with their health interests in mind. Instead, the medic is encouraged to explain that this is not a medical problem but a management issue and that going off on the sick will not resolve the problem or help her to find another job if that is what she decides to do. If that conversation happened, I think all employers would be relieved.
The medic is then encouraged to discuss with the individual whether they can talk to somebody at work to help resolve their problems such as speaking to HR, a Trade Union representative or speaking to ACAS. In the case study, the patient decides to approach another colleague for advice, to check the internet and to look at ACAS materials on managing conflicts at work.
Using that example, the situations we come across in HR where this is some kind of conflict or dispute in work, should not by this analysis result in somebody being signed off from work. It will be really interesting to see to what extent the medics toughen up their approach, as we all know that the stereotype is that Drs will provide a Fit Note “on demand”.
In the question and answer section of the document, it’s interesting to see that there is a question relating to “what if my patient fears job loss, stigma or discrimination if I reveal a health condition (or its effect on their work functioning) on their Fit Note?”. The answer is as follows: “if you feel that revealing a particular diagnosis or a limitation would harm your patient’s wellbeing, compromise their position with their employer, you can enter a less precise diagnosis on the Fit Note”. We have all come across examples where a Fit Note has said something like “unwell” or “stress” rather than an actual medical condition – this is why it is always worth referring somebody to occupational health to get the full picture. It reminds us that this scenario may be behind what a medic has written and that all may not be what it seems from the face of the paperwork: further exploration is necessary.
It is interesting to note that medics are encouraged to only issue bereavement related Fit Notes if somebody is genuinely so distressed by what happened to them that they are unfit for work – where they are not actually medically unwell then they should be having compassionate leave with their employer not time off sick. Again it will be interesting to see how many medics follow this guidance.
There is also further guidance for employers and line managers: Fit note: guidance for employers and line managers. Amongst other things, this repeats the position that has been the case for some while now but which I find employers are often confused by, in relation to return to work before the end of a Fit Note. The employee can come back to work at any time, even if this is before their Fit Note expires and they do not need to go back to their healthcare professional first. If somebody is coming back and you believe it is too soon or harmful in some way, then you would need to refer to occupational health for an assessment and further guidance. Where a healthcare professional assesses somebody is fit for work, they will not be issued with a Fit Note (there are some very narrow occupations where certification has to be given).
Something else that strike me about this new guidance is the emphasis that people do not need to be 100% fit to return to work because they may well be returning to work with adjustments and need to do alternative duties. That would probably surprise employees.
Anna Denton-Jones
Refreshing Law
You will all be familiar with GPs providing employees with certification that they are insufficiently well to attend work on day 8 of their absence, enabling the employer to then process, for example, statutory sick pay.
Some new regulations, snappily titled “The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No. 2) Regulations 2022″ amend the position to expand the category of people who can sign Fit Notes for the purposes of Statutory Sick Pay and making Social Security claims. From 1 July 2022, registered nurses, occupational therapists, pharmacists and physiotherapists will also be able to sign the Statements. The idea behind this is to reduce workload on GPs and as you can envisage the GP practice may pass some routine work to the practice nurse, for example.
However, employees are still going to primarily be thinking of their GP when they are thinking about evidence for their employer of them not being fit to attend work.
You will need to update managers on this development so that they appreciate that any paperwork they see with the four new categories of signature are genuine and acceptable.
Anna Denton-Jones
Refreshing Law
You may have noticed some of the following since the pandemic:
• People getting more upset than “normal” over something relatively trivial.
• People having a very emotional reaction to something they are asked to do, for example, returning to the office.
• An increase in conflict in situations where previously this would have been less likely to happen and employees being less resilient.
There is a brain science explanation for all of this. We have at brain chemistry level, been living within an environment of constant and invisible threat for 18 months. During a situation of stress such as this, the limbic system goes into overdrive and more complex parts of our brain such as the prefrontal cortex are used less.
This all makes sense in an emergency: we need our brains to focus to enable us to deal with the threat. For example, I had somebody drive into the back to me recently at speed while I was stationary in the car. The limbic brain function enables you to calmly deal with the situation but in that state it becomes much harder for us to think rationally, deal with complicated decisions and we become error prone.
This might also explain why, if you are feeling that you are just trying to do something relatively straight forward that you have always done but for some reason it feels more challenging than previously. We overloaded the system. I always remember a junior doctor talking about how they coped with their very long shift working and all that their job brought with it but would burst into tears when they found that the toothpaste had run out. It’s a perfect illustration of the pressure on our system, suppressing the prefrontal cortex and yet reacting emotionally, losing our tempers more and being unable to talk ourselves down in the way we would normally.
Normally the prefrontal cortex is able to talk to the limbic system essentially telling it to calm down and behave more rationally but if we are stressed, tired or sick then that becomes more difficult. We know how exhausted everyone is saying they are, particularly those who have worked in the front line or who have had to step up in other ways to see their organisation through the last 18 months, we can see why normality is being impaired.
This is why everybody feels a bit on edge but can’t really articulate why – it is normal when you’ve survived some kind of disaster.
The brain is immensely adaptable and will figure its way through this phase. It can even be a good thing where people will grow as a result of the experience, with the majority returning to functioning as they did before and a small proportion effectively experiencing post-traumatic stress disorder. Researchers are even beginning to talk about the common outcome being long term resilience but for the meantime, what can we do?
We have to accept that a cohort of the workforce are feeling immense fatigue and have short levels of concentration or simply struggling to concentrate at all. We have to recognise when this is happening that it’s not necessarily a permanent state of affairs and that we need to provide support rather than go straight to performance managing out. It may even help to talk about this to get people to understand what is going on so that they accept their emotional state, rather than trying to fight against it. This reduces them being stressed about being stressed in the first place. It stops people dwelling and feeling increasingly negative. Dealing with what’s going on in a non-judgemental way can drag that prefrontal cortex back into the picture and give it a chance to quieten down the limbic system. If people are in a state of anxiety it can be quite easy to end up in a negative spiral where that becomes the dominant emotion.
When we are in a particular mental state we tend to dwell on the particular emotion that we are feeling and remember all of the other times that we have felt this way rather than all the other times when we haven’t felt this way. It may help people to understand that this is what happens and that dwelling on something more positive can help the brain chemistry.
Anna Denton-Jones
Refreshing Law
The government has launched a consultation relating to some amendments to the flexible working legislation making political mileage out of a willingness to make a request of flexible working a day 1 right, but what will their proposals really mean?
The current system works as follows: someone with 6 months service can make a request to work flexibly to their employer who must consider it within a reasonable time and can decline the request, provided their reasons for doing so falls within a list of eight business reasons for doing so. This covers things like the inability to service their customers, additional cost, the inability to reorganise work amongst existing staff or to recruit additional staff and a detrimental impact on quality or performance, if there is sufficient work during the period of time the employee proposes working and wider planned structural changes.
Given that it’s fairly straightforward for an employer to weave their way through, employees typically have to rely on the discrimination legislation to argue their request results in less favourable treatment of them compared with colleagues. For example, working mothers have often claimed indirect sex discrimination in comparison with the male workforce as regards fixed working hours and patterns of work because they are at a disadvantage as a result of the employer’s policies. The employer then has the ability to justify any indirect discrimination as a proportionate means of achieving a legitimate aim. Employees with caring responsibilities may have to rely on associative discrimination provisions or age discrimination to help them.
The Government’s consultation has asked for views on 5 different things:
This tells us that the Government may be considering a separate right to the existing legislation which results in a permanent change to somebody’s working patterns if a request is accepted and that there might need to be a short term agreement but clearly there’s no definition yet to see what that might look like. Anyone who is a working parent trying to juggle children being sent home from school because of COVID-19 will surely have ideas about how such temporary flexibility might improve their lives.
The Government has already signalled that it will introduce a right to carers leave, which would be 5 working days of unpaid leave per year for employees to manage long term caring responsibilities outside of work and which would be able to be taken in any combination from half day to days or part of a week to the week. We have been told that the legislation will go before Parliament “when time allows”.
The CIPD emphasise that flexible working needs to be thought about in wider terms than just whether somebody is working from home versus working in the office. There is a whole range of flexibility in relation to flexi-time, part-time working, compressing hours such as working a 13 day fortnight and job shares.
The Government is going to be considering the lessons that have been learnt from COVID-19 and the undoubted seismic changes in what employees want in terms of their desires and preferences to spend less time commuting and how that is balanced against what employers want in terms of what is workable for them and what is in the interests of the business. Quite how that balancing exercise will play out will be interesting – from a legislator perspective, my money would be on incremental changes only and the employers retaining the upper hand but realistically, all employers needs to consider the current jobs market and the fact that employees are gravitating towards those organisations who they feel are most likely to meet their needs and any employer who is ignoring the issue of flexible working is likely to experience the implications in their attrition rates and challenges recruiting.
It’s always worth remembering to trial something before having to commit to it fully. Often a trial is the only way to successfully assess whether or not something works as a compromise for both parties.
Anna Denton-Jones
Refreshing Law
A case involving an employee who refused to attend work due to COVID-19 – Rodgers v Leeds Laser Cutting Ltd caught my eye because it is one of the first decisions that I have heard about dealing with an automatically unfair dismissal claim under Section 100 of the Employment Rights Act. Section 100 (d) permits an employee who is dismissed, in circumstances of danger, which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, to claim automatically unfair dismissal.
In this particular case, the employee had a child with sickle cell anaemia and a 7 month old baby and was concerned that attending work would put his family at risk. The Employment Tribunal found that the employer had generally complied with all guidance as regards creating a COVID safe workplace: it was a large warehouse space, where it was possible to socially distance, face masks had been provided, guidance had been issued around hand washing and sanitiser had been provided and there were no criticisms made of the employers risk assessments or other measures put in place for COVID safety. In summary, the employee was more concerned about COVID-19 generally in the world at large as opposed to having any specific complaint about his actual workplace and how his employer had addressed those risks. In particular, the Tribunal noted that he had not made any complaint.
In those circumstances, whilst the wording used in the general Coronavirus Regulations (Public Health legislation) does use the same language and establishes that COVID-19 is a serious and imminent danger in general, the Tribunal felt that that could not be applied to this particular workplace because if you applied the logic that because COVID-19 is a general risk in the world, making every workplace dangerous, then every single employee across the country would be able to refuse to attend their workplace. For that reason and the fact that the employee had not made any specific complaints about his workplace, he failed in his complaint.
Of course, that does not mean that every employee will fail in such a claim: the TUC has reported in the week commencing Easter Monday, that their data shows that a third of all workplaces are not complying with the government guidance on COVID safe working. Clearly employees who work in those sorts of workplaces may have been successful in a similar argument.
This particular employee did not have 2 years’ service, so he was purely bringing his automatically unfair dismissal claim. However, if he had had 2 years’ service, he may well have brought an ordinary unfair dismissal claim – the Tribunal commented in this case that they would have had procedural concerns about the way in which the employer had handled the dismissal. As well as the procedural hurdle in an ordinary unfair dismissal claim, a Tribunal is also going to think about whether it would fall within the range of reasonable responses test to dismiss an employee who was worried about his family. I would suggest that the rush to dismissal in this case would probably make it unfair. An employer who issued the employee with warnings and had taken every step to work with the employee to allay his concerns, meet with him and get him back to work would be in a stronger position.
You could also see how in some cases an employee with their own disability could also have Equality Act claims if their own health was at the bottom of their refusal.
In any event, this is only a first instance decision and at some point the Employment Appeal Tribunal will have to rule on these sorts of issues and give guidance for employers but it is heartening essentially that the employee was not seen as being reasonable in this case and hopeful that the EAT will agree with the logic that general COVID risks in the world at large does not qualify as serious and imminent danger in the workplace, as every employee would be able to refuse to work.
Anna Denton-Jones
Refreshing Law
Our latest video is available to view on the Refreshing Law YouTube channel — please click here to watch Anna discussing ‘working from home and ill health’ and the potential impact on individuals and businesses.
Anna Denton-Jones
Refreshing Law
If this feels familiar, we have been here before…
In Wales
The clinically extremely vulnerable have been advised to shield in Wales since the 22 December 2020. Shielding for the clinically extremely vulnerable will be paused on 31 March 2021. The fact that the word “pause” is being used indicates that this position may change again in the future so be prepared to be flexible.
Working from home should still be the position wherever that is possible. Where that is not possible, employers will have to take measures to make the workplace COVID secure which may involve changing the person’s duties etc.
In England
The clinically extremely vulnerable have been shielding since 5 January 2021. As of 1 April 2021, they will no longer be advised to do so and will not be eligible for statutory sick pay on the basis of being advised to shield.
The advice is still that they should continue to work from home wherever that is possible, so employers ought to be attempting to facilitate that. Where they cannot work from home, then they are advised to attend their workplace and employers will be under a duty to take measures which will reduce the risk of exposure to COVID-19 in the workplace. That may involve changing the person’s duties etc.
Both
Furlough is an option where the employer decides working from home isn’t possible. The employer would need to consider the discrimination risks associated with, for example, singling out a worker for furlough, when their category of colleague was not also being furloughed.
Anna Denton-Jones
Refreshing Law
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