With effect 6th April 2010 GPs will be introducing a new type of sick note which will enable GP to state one of two options, either that the employee is :

• unfit for work, or
• may be fit for work taking account of the GPs stated advice.

The DWP is issuing guidance for doctors on the new notes and has issued specific guidance for employers.

Employers will need to take care when reviewing these new notes as to whether or not they can facilitate a return to work as otherwise they may find themselves at an increased risk of disability discrimination claims if they too easily discount accommodating a possible return to work with some Reasonable Adjustments. (However, unless the employee has a disability as defined by the Disability Discrimination Act there is no obligation on the employer to make any such adjustments). 

The danger with the new system is that the GP may recommend a phased or partial return to work , perhaps with some adjustments, that the employer may consider to be simply too costly or not feasible from their perspective.  However the GPs recommendations may raise expectations on the part of the employee who could be looking forward to a return; possibly on so called light duties. Such duties may not exist (and need not be created) Therefore dialogue between the GP, employee and employer may be essential.

There will have to be a significant shift in the response of GPs to requests from employers for information which our experience shows that this may take several months. The Government has apparently recognised that it is not the doctor, but the employer in consultation with the employee, who is best placed to make the decision as to whether they can accommodate any changes to facilitate a return to work.

This seems to indicate that the onus will be on the employer to prove that what the GP recommends is not possible. In such a case they may be forced to refer to Occupational Health specialists or other medical practitioners in order to do so.

Apparently the new system will help reduce sickness absence and encourages proactive steps to facilitate an employee's earlier return to work, there may be economic benefits all round." What it will probably do will be to place even more pressure on employers already faced with an array of laws designed to protect and reward employees who are able to pick up on the smallest breach of so called good practice and procedure. This in particular impacts most heavily on small employers who do not have the time, the expertise and resources to be PC savvy.

Time will tell!