Obtaining a medical report and the new “fit note”

Obtaining a medical report and the new “fit note”

There are a number of reasons why you, as an employer, might need to obtain a medical report on an employee. The most common reasons for doing so are to consider whether an employee, who has taken a substantial number of short-term intermittent absences, is suffering from any underlying medical condition or to obtain a prognosis concerning the likely timescale within which an employee who is on long-term sickness absence is likely to return to work.

It may already be the case that your employment contracts or sickness procedures specify that medical reports will be obtained if an employee has been absent for a specified period of time. Even so, you must obtain specific consent from the employee to apply for a medical report. If an employee withholds their consent to a medical report, you may have grounds for disciplinary action or dismissal. So, it is vitally important that you always ensure that a full paper trail is kept in order to defend any subsequent unfair dismissal claim.

The Access to Medical Reports Act 1988 (AMRA) makes the provision of medical reports dependent on certain conditions and gives individuals certain rights in relation to their report.

Employers are only permitted to apply for a medical report if you have notified the individual concerned in writing that you intend to do so, and the individual has provided explicit consent to the application being made. This consent is required even if there is a general consent in the employee’s contract or in your sickness procedure.

An individual who has been asked to provide their consent for a medical report has the option to withhold their consent, to consent to the application and agree that it can be sent directly to their employer, or to consent to the application but indicate that they wish to see the report before it is supplied to their employer. A copy of the employee’s consent should be supplied to the medical practitioner when requesting a report.

As employers you are also required to advise individuals of their rights under AMRA at the time their consent is sought. Ideally you will have a pro-forma summary statement of rights which should be included when you are seeking consent to a medical report.

From 6 April 2010, doctors will have two options when providing medical reports.  They may recommend that an employee is not fit to work (as per the present system) or they may indicate that an employee “may be fit for some work now”.  GPs will have the option to indicate that an employee may benefit from such changes as a phased return to work, altered hours, amended duties or workplace adaptations.

Although GPs will have to give reasons for their proposals, they will not be expected to provide any more than generic reasons. So while the new system should help employers assess an employee’s medical condition, you will not be bound by the GP’s recommendations and will remain responsible for ensuring that your employee is fit to return to work under the terms of his or her contract.  You also need to bear in mind your responsibilities and possible exposure under the disability discrimination and various health and safety laws.

If you wish to the discuss this or any employment matters please contact Alistair Wells.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.