Regulations to introduce fit notes laid before Parliament

The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 have been laid before Parliament and will come into force on 6 April 2010. Under the regulations, ‘fit notes’ will replace sick notes (also known as medical certificates, medical statements or doctor’s statements). The regulations contain new rules concerning the completion of a medical statement and prescribe the format of the medical statement to which those rules relate. The medical statement will help employees claim statutory sick pay (SSP), as well as certain health-related social security benefits.

Medical statements are issued by GPs and other doctors to provide advice on fitness for work to their patients who have a health condition. Employees are normally required to provide medical statements to their employers from the eighth calendar day of sickness absence in order to support their claim for SSP or contractual sick pay. At the moment, medical statements simply require the doctor to describe, in brief terms, their patient’s medical condition and indicate whether or not they should refrain from work. The new rules will allow a doctor to consider not only whether their patient is unfit for work but also whether their patient may be able to work with appropriate support if available. Where a doctor states their patient may be able to work, the doctor must provide general information to support that statement. This could include advice about changes that could be made by the employer in agreement with the employee that would assist a return to work. There will be a single medical statement form available for use in all cases.

The new medical statement provides information on:

• The date a doctor assessed their patient’s case.
• The health condition of their patient.
• Whether their patient is ‘not fit for work’ or ‘may be fit for work taking account of the following advice’.
• Where the doctor considers their patient ‘may be fit for work taking account of the following advice’, the doctor must provide further information/comments to support this. If the doctor considers it appropriate that their patient may benefit from workplace adaptations or adjustments (such as a phased return to work, altered hours or amended duties), they should also tick the relevant box.
• The period for which the doctor considers their patient is ‘not fit for work’ or ‘may be fit for work taking account of the following advice’.
• Whether or not they need to assess their patient’s fitness for work again on the expiry of the medical statement.

There is no longer a ‘a fit for work’ option, which was proposed in the original consultation, as doctors were felt not to have the appropriate knowledge about individuals’ roles and the risks involved to be able to assess this.

If an employer is not able to facilitate a change or an adjustment, a revised medical statement is not necessary; the existing medical statement is evidence that an individual has a health condition preventing them carrying out their current role.

The maximum period a medical statement can be issued for will be three months during the first six months of incapacity.

The Government intends that separate guidance for individuals, employers and healthcare professionals will be available shortly. The guidance for individuals will be made available via a fact sheet which GPs can print and provide to patients. Guidance for employers will be available through the internet.

The regulations apply to Great Britain. Separate regulations are to be made in Northern Ireland.

This briefing note is intended merely to provide a summary of the law in this area and is not a comprehensive guide. It is not intended to provide legal advice for specific cases. The law and practice in this note is stated as at February 2010.

The Work and Families (Increase of Maximum Amount) Order 2009 increases the amount of a ‘week’s pay’ which can be taken into account for statutory redundancy payments and various awards made by employment tribunals from £350 to £380. The new rate applies where the event giving rise to the entitlement to compensation or other payment occurs on or after 1 October 2009.

• The Work and Families (Increase of Maximum Amount) Order (Northern Ireland) 2009 – as above but applies to Northern Ireland.
• The National Minimum Wage Regulations 1999 (Amendment) Regulations 2009 increase the various NMW rates as follows:

o The adult rate increases from £5.73 to £5.80 per hour.
o The rate paid to workers aged 18 to 21 increases from £4.77 to £4.83 per hour.
o The rate paid to workers aged below 18 who have ceased to be of compulsory school age increases from £3.53 to £3.57 per hour.
o The per day value of the accommodation amount which is applicable where the employer provides the worker with living accommodation increases from £4.46 to £4.51 for each day that accommodation is provided.

In addition, the regulations amend the main National Minimum Wage Regulations 1999 to provide that service charges, tips, gratuities and cover charges paid to a worker through the employer’s payroll do not count towards the NMW (this only applies in respect of pay reference periods beginning on or after 1 October 2009). Finally, the regulations insert two new classes of persons who do not qualify for the NMW. These are workers participating in the EC Erasmus and Comenius Programmes.

• The Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2009 adds the following to the list of ‘prescribed persons’ to whom workers can make protected disclosures under the Public Interest Disclosure Act 1998: (a) the Independent Regulator of NHS Foundation Trusts; and (b) the Financial Reporting Council Limited and its operating bodies, the Professional Oversight Board, the Financial Reporting Review Panel and the Accountancy and Actuarial Discipline Board. It also specifies the descriptions of matters in respect of which those persons are prescribed.

This briefing note is intended merely to provide a summary of the law in this area and is not a comprehensive guide. It is not intended to provide legal advice for specific cases. The law and practice in this note is stated as at September 2009.

Statutory redundancy pay limit to rise on 1 October 2009

In the April 2009 Budget, the Government announced that the limit on a week’s pay which is taken into account in calculating statutory redundancy payments was to be raised from its current level of £350 to £380. The Government has now confirmed that this increase in the weekly limit used to calculate Statutory Redundancy Pay will come into effect from 1 October 2009. It has also stated that the limit will not rise again in February 2010, as it would normally do. Rather, it will remain at £380 until February 2011 and the annual uprating due to take effect from 1 February 2010 will be suspended. Normally, the annual increases in February track changes in the Retail Prices Index (rounded to the nearest £10) but this one-off increase is taking place without reference to that mechanism.

The increase means that the maximum statutory redundancy payment will increase from £10,500 to £11,400. The Government hopes this will strike the right balance between helping those made redundant without placing undue burden on employers.

The statutory maximum amount of a week’s pay is also used for the purpose of calculating the basic award for unfair dismissal and certain other compensation payments, including those due on insolvency. The increase is also expected to apply to these other types of payment.

The increase will come into effect under the Work and Families (Increase of Maximum Amount) Order 2009, made under section 14 of the Work and Families Act 2006.

Statutory Sick Pay and Statutory Maternity Pay have both been increased in line with the government's proposals to £79.15 and £123.06 respectively.

The annual holiday entitlement, in accordance with the Working Time (Amendment) Regulations 2007, has also been increased to 5.6weeks which is 28 days annually for a 5 day working week. This takes effect from 1 April 2009. It's important however to note that there is no statutory right to take Bank or Public Holidays paid or unpaid so this new statutory holiday entitlement would potentially include those days as well. It would be good management practice to inform employees, in writing, of their statutory holiday entitlement. See copy template letter to send to staff at the end of this article. The ability to pay workers in lieu of the extra days (i.e. those above the old entitlement of 4 weeks/ 20 days), which applied from 1 October 2007, will cease to apply from 1 April, so your employees will have to take at least 5.6 weeks’ holiday in each leave year.

The government has announced new national minimum wage rates which will come into effect in October 2009.

Workers aged 22 and over will see an increase from £5.73 to £5.80 an hour, while wages for 18 to 21-year-olds will also rise from £4.77 to £4.83 and for 16 and 17-year-olds, the rate increases to £3.57 an hour from £3.53.