28 May 2010
Changes to the rules governing sick notes for staff came into effect from 6 April. Here James Townsend, partner at B P Collins, reviews what the new regulations mean for employers and also looks at the tricky topic of staff whose illness means they are unable to take their full holiday entitlement and want to reclaim their leave.
When the Government introduced the new "fit note" regime, the move was heralded as a way to separate the work-shy from the genuinely ill and to enable sick employees to return to work earlier with support from their employer.
Under the new system, a patient who is off work for more than seven days on account of a medical condition will be provided with a computer-generated medical statement instead of a traditional hand-written sick note.
The statement will provide information on how the individual's health condition may affect their ability to work, and suggest how implementing workplace adaptations or adjustments could help facilitate their return.
The doctor will be able to advise either that the patient is "not fit for work" or "may be fit for work taking account of the following advice", in which case additional information must be provided by the GP.
Typical suggestions could be:
• a phased return to work
• altered hours
• amended duties and
• workplace adaptations
Other suitable changes may also be suggested to benefit the employee, and the doctor must indicate whether or not they need to assess their patient's fitness for work again when the current statement expires.
"It's important to note that employers are not bound to implement the suggestions put forward by a doctor for workplace changes," said James. "They will be at the employer's discretion and should be made with the agreement of the employee.
"If they are put in place to help an employee return to work sooner, then the employer must carry out a revised risk assessment to ensure that any new potential health and safety risks to the returning employee and others in the workplace are minimised.
"If, on the other hand, the doctor's advice isn't followed, then the worker should be treated as though they are not fit for work."
If an employee is disabled for the purposes of the Disability Discrimination Act 1995, then the employer has a duty to make reasonable adjustments regardless of what a doctor recommends.
But what happens if an employee's illness means they are unable to take their leave entitlement?
In the UK, The Working Time Regulations state that leave may only be taken in respect of the leave year in which it is due. This can lead to confusion however, if a worker is unable to take holiday due to illness, and wishes to carry the time forward to the next leave year.
A recent Employment Tribunal (ET) in Leeds considered the case of a worker who broke his ankle shortly before going on four weeks' holiday. He was off work for nearly three months and, by the time he returned to work, a new leave year had begun. He asked to claim back the holiday he had booked before his accident but his employer refused.
The ET ruled that the employer was wrong, drawing on a decision from the European Court of Justice (ECJ) which ruled that a Spanish worker who suffered an accident at work which left him on sick leave for most of the annual leave period allocated to him, had the right, on request, to reschedule his holiday, even if this meant carrying it forward to the following leave year.
"These are somewhat murky waters at the moment," said James. "Whilst this decision gives an indication of the way forward in such cases, decisions at ET level are not binding on other Tribunals. We recommend that employers seek advice on their individual circumstances."
The employment law team at B P Collins regularly advise employers on their duties and also provide a policies and procedures healthcheck. If you would like to speak to James, or a member of the team, about this subject please call 01753 279029, complete the online enquiry form or email employmentlaw@bpcollins.co.uk. |
