Guidance published earlier this year by the Department for Work and Pensions states that in principle, employers are able to overrule the advice of a doctor.
Getting the Most Out of the Fit Note confirms that managers can “gather other evidence about your employee’s fitness for work from other doctors or healthcare professionals”. It goes on to say that they can “choose to give this other evidence precedence over the advice in the fit note”.
Dr Sayeed Khan, chief medical adviser to manufacturers’ organisation EEF has commented on the significance of this shift:
“The fact an employer can choose to go out and gather other evidence, and that the employer’s evidence can take precedence over other evidence, is really important. For example, an occupational health nurse that knows the site very well and has done an assessment for work may be able to say: ‘There is work on this site that is suitable for that person’.
“Then, if the employee refuses to come back to work, the employer could listen to the nurse instead of the employee’s GP. From there, there might be consequences. The employer, of course, may have to be able to justify why they prefer to take that advice in a tribunal, but it is quite ground-breaking that they could override the view of a GP.”
The need for employers to be able to justify why they are going against the advice of a fit note is emphasised in the guidance itself, which states:
“Your employee may disagree with you, and you may need to demonstrate to an employment tribunal why the alternative source of evidence was more acceptable to you than the fit note.”
Lisa Roberts, Technical Director of the Occupational Health Division at Santia Consulting Ltd commented:
“Employers are often left frustrated with the feedback that they get via fit notes and feel like their hands have been tied; various factors could be responsible for this – doctors aren’t necessarily familiar with the workplace or may not be aware of the possible adjustments that can be made to hasten someone’s return to work.
“However, the new guidance clearly gives employers more power and emphasises the vital role that occupational health services have to play. Businesses that choose to work closely with occupational health providers will benefit from fully informed decisions regarding an employee’s fitness to work; this of course has huge implications on whether someone stays off sick or goes back to their job.”
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