As part of Rishi Sunak’s speech on reforming welfare, a heavy focus was applied to the large number of those off on long term sick and the large volume of younger people within that group signed off with depression or anxiety, alongside a comment suggesting that the data implied that there was an ‘over-medicalising the everyday challenges and worries of life’ at play. 

When combined with the proposal of shifting the responsibility to issue sick notes away from GPs and towards ‘specialist work and health professionals’ with a view to driving more people into work, the natural implication to be drawn is that a large volume of people currently signed off as unfit are not genuinely too unwell to work and are simply preferring to be signed off from work rather than ‘gritting their teeth’ and ‘powering through’ their everyday challenges/worries, and that GPs are effectively pandering to this by certifying individuals as unfit for work simply if they ask to be.

The ‘special relationship’

Mr Sunak made observations in his speech of the ‘special relationship’ between GP and patient, and GPs are duty-bound to act in the best interest of their patients’ health and wellbeing.

As against the large volume of literature and research supporting the positive impact of being in work on an individual’s health, self-worth, and wellbeing, the very low percentage of fit notes (6.5%)  signing an individual as ‘maybe fit’ certainly seems somewhat incongruous if approaching the matter on the assumption that a large proportion of those being signed off as unfit are actually capable of working.

The most natural explanation for this apparent discrepancy then would perhaps be that the qualified expert medical professionals with a deep knowledge of their patient are signing them off as ‘unfit’ rather than ‘maybe fit’ because that is the most accurate assessment on the available evidence, and/or because their professional view is that it would be harmful for the individuals health for them to try and attempt to undertake work at that point (perhaps also linked to such individuals struggling to access supplementary support services within the NHS which would meaningfully assist the individual  with overcoming their mental health issues they are battling with in a timely and effective fashion).  Alternatively of course (or in addition), it may be more to do with the limited time that overworked GPs are able to devote to each patient, combined perhaps with a lack of training and support for GPs around being comfortable to give advice or guidance more usually reserved for specialist clinicians in occupational health medicine.

Serious questions are raised

If we were to assume that the former explanation is the more accurate, then whilst passing on the responsibility to issue fit notes to some form of other ‘specialist work and health professionals’, this raises some serious questions. The most pressing of which would perhaps be around who this group of ‘specialist work and health professionals’ are and what medical or professional qualifications they hold.

If they are individuals who have little or no prior knowledge or access to the patient’s medical records or history and are operating on the basis of a ‘snapshot’ assessment made with very limited clinical expertise and with an express agenda towards forcing individuals to work, then that would appear to run a very real risk of forcing individuals into work who are simply not well enough to be there at that point.

Recovery time

If an individual returns to work when not yet fit to do so, it goes without saying that this would carry a very real danger of substantively delaying/prolonging their recovery (with a significant impact on their productivity in the meantime), or actively worsening their condition and causing more permanent or long term harm.  If that individual is genuinely not capable of undertaking their work, then clearly this will also have a knock on impact on their colleagues and on the business, creating a risk of mistakes and accidents, and a drain on administrative resources.  Significantly though of course, in addition to the statutory duties under health and safety legislation, employers are under a common law duty to take reasonable care for the health and safety of employees in the workplace. If an employer believes that an employee is too ill to be working yet allows them to do so on the basis that the individual cannot obtain a fit note, then this leaves the employer between a rock and a hard place.

Forcing the individual to stay away would mean that the employer was compelled to maintain them on full pay, whereas allowing them to work would open the door to the employer being exposed to claims of personal injury if doing so resulted in the employee suffering a serious deterioration or psychiatric injury as a consequence.

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By James Collings, Partner in the Employment Team at Ashfords LLP.

 

 

 

 

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Amelia Brand is the Editor for HRreview, and host of the HR in Review podcast series. With a Master’s degree in Legal and Political Theory, her particular interests within HR include employment law, DE&I, and wellbeing within the workplace. Prior to working with HRreview, Amelia was Sub-Editor of a magazine, and Editor of the Environmental Justice Project at University College London, writing and overseeing articles into UCL’s weekly newsletter. Her previous academic work has focused on philosophy, politics and law, with a special focus on how artificial intelligence will feature in the future.