Legal Ease

The current ‘sick note’ will be replaced by the 'fit note' from 6 April 2010. The ‘fit note’ aims to focus on what an employee may be able to do at work rather than what they cannot do. This may not be easy for Doctors to achieve as their knowledge of the role will be limited to what the employee tells them. It will be interesting to see how Doctors respond to this change.

The new ‘fit note’ has two options for the doctor to tick:
· ‘You are not fit for work’
· ‘You may be fit for work taking account of the following advice’

A doctor will give a 'may be fit for work' statement if they think that your employee's health condition may allow them to work, assuming you give the appropriate support.

A fit note will ask Doctors to list whether the employee would benefit from:
· a phased return to work
· altered hours
· amended duties
· workplace adaptations

The GP will also provide general details of the functional effect of the individual's condition. However, GPs will not be required to go into detail about what exactly a worker could do related to their actual job! The Doctor also has to specify whether and when he/she will need to see the employee again to reassess fitness for work. Doctors will be able to issue a statement as a result of a telephone consultation or a report by another healthcare professional.

If you have any doubts/concerns about how your employees health is effecting their ability to do their role, ask for their written permission to gain a medical report about their condition. Remember that the employer still has the same obligations under the Disability Discrimination Act.

To understand the changes fully, go to the Department for Work and Pensions (DWP) web page on fit notes.

TIME OFF FOR DEPENDANTS LEAVE

Employees have the statutory right to take dependants leave to deal with unexpected emergencies from day one of the employment relationship. Recent case law has provided guidance on when an employee may take time off to care for a dependant under section 57A of the Employment Rights Act 1996 (ERA). In the case of Royal Bank of Scotland v Harrison, the employee was given two weeks’ notice that her childminder would not be able to look after her children on a particular day. She tried to make alternative arrangements but without success. The employer refused a holiday request and dependants leave was also rejected due to it being too far in the future. The employee was unable to find alternative childcare so took the day as emergency dependants leave and was disciplined on her return to work. Harrison bought a claim against her employer and the EAT found in her favour. The case has determined that:

Emergency leave to care for dependents does not just apply in sudden or emergency situations– even if the problem is a short way in the future, it can still qualify for dependants leave, particularly where the employee can’t make alternative arrangements.

You must ensure that you act promptly and reasonably when responding to requests for time off work to care for dependants. Treat any such request with caution and obtain all the facts before making a decision. While such absence is often referred to as "emergency leave", it is important to note that time available to the employee to make other arrangements is not the only factor when considering whether it is necessary for the employee to take the time off work.