Can you challenge a fit note?
FIT NOTE OPTIONS
If an employee is off sick from work for more than a week, they’re required to submit a statement of fitness for work - or “fit note” - to provide medical evidence of their ongoing sickness absence. The fit note is normally provided to them by their GP. It contains an assessment by the GP that the employee is either “not fit for work” or “may be fit for work taking account of the following advice”, with accompanying notes on suggested adjustments or adaptations to the job role or workplace.
Pro advice. Using tick boxes, the GP can suggest a phased return to work, amended duties, altered hours or workplace adaptations. They can also add further narrative.
NOT FIT FOR WORK
If you dispute that an employee is “not fit for work”, either because you think their illness isn’t genuine or they’re capable of some work, remember that you’re not a medical expert and the GP is. So, instruct your own occupational health specialist or independent doctor and arrange for the employee, with their consent, to attend a medical examination with a view to the production of a medical report.
Pro advice 1. You can then give your detailed medical report precedence over the basic fit note.
Pro advice 2. As a medical report needs the employee’s consent, takes time and costs money, your other option is to refuse to pay sick pay. Where you have a contractual sick pay scheme that guarantees sick pay, you risk a breach of contract claim if you do so. However, where enhanced sick pay is discretionary, you can revert to paying statutory sick pay (SSP) only, provided you can show you exercised your discretion rationally, fairly and not arbitrarily (see Follow up ).
Pro advice 3. You can also stop paying SSP, but you’ll need good reasons, supported by evidence. Your employee is entitled to a written statement (see Follow up ) and they can then seek a formal decision on their SSP entitlement from HMRC. If they do so, both of you will be asked for your observations in writing before a decision is made. If HMRC’s decision is that your employee is entitled to SSP, it will give the time limit by which you must pay it. If you fail to make payment within the time limit and don’t appeal, be aware that you may incur a civil penalty.
MAY BE FIT FOR WORK
Where the “may be fit for work” option has been selected, you should discuss the GP’s recommendations with your employee and then decide whether you can accommodate any of them to enable the employee to return to work.
Pro advice. Invite the employee to attend a telephone meeting to do this (see Follow up ).
If, having assessed the position, your view is that you can’t accommodate any changes, you don’t have to do so. The advice in the fit note isn’t binding on you; it’s simply advice for the employee. You can then treat the fit note as if the employee was certified as “not fit for work” (see Follow up ).
Pro advice 1. If you think there are other changes that would enable a return to work that the GP hasn’t covered, still discuss these with your employee.
Pro advice 2. The GP’s recommendations in a fit note might constitute reasonable adjustments for a disability under the Equality Act 2010 , so don’t just dismiss the advice if the employee might be disabled. Instead, consider it carefully and keep a written record of the reasons for your decision.
Letter notifying reversion to SSP
Letter withdrawing SSP
May be fit for work acknowledgement letter
Letter declining fit note recommendations
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