The Prime Minister gave a speech on Friday proposing to tackle our “sick note culture”. Probably the most significant proposals made were to do with the wider issue of benefits for those were economically inactive because of long-term ill-health. Those issues fall outside my expertise, but the PM also talked about the use of fit notes in the context of employment and that is something I have views on. 

I was interested to see that according to the Mail, doctors are about to “lose the power to hand out sick notes”.  The idea that doctors have the ‘power’ to issue fit notes made me smile. Most doctors would think of it as a chore rather than a power. If I were to lose the power to do the washing up, I wouldn’t be too upset about it. 

By the way, I don’t blame the press for talking about sick notes rather than fit notes. Sick notes were renamed fit notes in 2010 for reasons we will get into – but I’ve never really got used to the new name and it still sounds strange to me. But there does seem to be some misunderstanding out there over what a sick note / fit note actually is. The Telegraph told us: 

Sick notes, which were rebranded as “fit notes” in a previous reform, are waivers signed by GPs and other doctors that give someone the right not to go into work.

That is very wide of the mark. A fit note does not give an employee the right not to go into work. It does not, for example, protect an employee from dismissal for poor attendance. 

A fit note’s specific legal function is to act as evidence of an employee’s unfitness for work. An employer is entitled to require medical evidence when an employee is claiming Statutory Sick Pay (SSP) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (as amended) set out the form that the fit note takes. If a valid fit note is produced then the requirement for medical evidence has been met and the employee will be entitled to be paid SSP at the princely rate of £116.75 per week.

Of course many employers pay more than the SSP minimum and will use the fit note as a key part of their absence management process. In this context there is a genuine and long-standing concern that a fit note is simply too easy to obtain and that some doctors regard work as a hazard from which employees should be protected whenever possible.  The rebranding of “sick notes” to “fit notes” was intended to address this problem and shift the emphasis from what employees cannot do to to what they can do. 

So the modern fit note amounts to advice directed to the employee under which the doctor ticks one of two boxes. The first box says “you are not fit for work” and the second box says “you may be fit for work taking account of the following advice” There is then a section where the doctor can add some specific advice about matters such as a phased return to work or a change in working hours or duties.

In his speech on Friday Rishi Sunak was concerned that this second box was not being used. He said: 

“11 million of these Fit Notes were issued last year alone.  But what proportion were signed “maybe fit for work”? 6 per cent. 

That’s right – a staggering 94 per cent of those signed off sick were simply written off as “not fit for work.””

His solution is to “test ..shifting the responsibility for assessment from GP and giving it to specialist work and health professionals who have the dedicated time to provide an objective assessment of someone’s ability to work and the tailored support they need to do so.”

There is certainly something to be said in cases of long-term sickness for seeking the advice of specialists who know about the workplace and can suggest ways in which an employer can get an employee back to work. This is what an occupational health service does and many employers use such services to help them manage long-term sickness absence. It is not something that GPs are trained in and that might be one reason why the second box on a fit note is so rarely ticked.

Back in 2014 the Government tried to address this issue by providing an occupational health service for all employers to use. I was sceptical about its benefits at the time and indeed it was scrapped in 2018 due to a lack of take up. It appears, however, that the Prime Minister wants to have another go and  “design a new system where people have easy and rapid access to specialised work and health support to help them back to work from the very first Fit Note conversation.” 

But in 2014 the offering was occupational health advice that was in addition to the medical evidence that was provided by the fit note. In his speech, the Prime Minister appears to be suggesting that employees would have to use the new service as a means of obtaining a fit note – that doctors would no longer be the ones providing them.  

The idea that that employees should have to go to this new service from the “very first fit note conversation” is just absurd. Would someone who has flu have to use this service? What about someone recovering from surgery? Of the 11 million fit notes issued in a year many if not most will be for straightforward forms of ill-health or injury that require medical treatment and a period of rest and recuperation away from work. There is surely no way the Government are going to require employees to go and use a separate service to certify their unfitness for work in those circumstances. 

And of course, many people who are off sick will still need to see a doctor because they are, well, sick. They may be receiving medication or other treatment and the doctor might also give them advice about staying away from work simply as part of their medical care. What happens if the advice given by this new service – perhaps withholding a fit note – contradicts the medical advice given by a doctor? It just isn’t a workable proposal. 

Apart from anything else it all seems rather pricey. Who is going to pay for a service of ‘specialist work and health professionals’ to issue 11 million fit notes a year? If employers want help in finding ways to get their employees back into work after a period of sickness or injury then a wide range of occupational health services are available and I don’t see why that should be paid for with taxpayer money. 

My idea for reform is rather more straightforward. Let’s just get rid of fit notes altogether and let employers manage and fund their own absence management processes. Why should it be a function of the NHS to determine whether or not an employee is entitled to sick pay?  In fact, while we’re on the subject, why not scrap SSP as well? The Regulations surrounding it are hideously complicated – reflecting the fact that it was initially designed as a social social security payment administered by employers. We could just replace it with a straightforward entitlement to a minimum level of contractual sick pay.

Employers may worry that without fit notes employees will be free to fake illness in order to stay away from work. But under the current system how many deliberate malingerers are thwarted by a vigilant GP who spots their ruse and – in the ten minutes allotted for their appointment – explains why a fit note will not be issued? The reality is that for most employees, obtaining a fit note is just a formality – so what is the point of it? Perhaps we should free up doctors to advise and treat their patients rather than complete paperwork for the benefit of employers. If employers need information about an employee’s medical position then it should be up to them to organise that using a provider who will be able to make a proper job of it.

One certain way of ending the fit note culture is to scrap the benighted things altogether.