Search

How can we help?

Icon

Fit note changes: Proving employee sickness  

A change in the law from 1 July 2022 increases opportunities for employees to be signed off work when sick. Nurses, occupational therapists, pharmacists and physiotherapists can now sign statements of fitness for work, also known as a GP fit note. This change has been brought in to ease the burden on GPs.

But what might this mean for employers who suspect that a worker is exaggerating their condition for some reason: perhaps to avoid performance management or disciplinary hearings, or to take advantage of contractual sick pay?

The warning to employers from recent tribunal cases is not to make negative assumptions about an employee’s state of health without proper investigation first. In the case of Singh v Metroline West Ltd, Mr Singh succeeded with his claim for constructive dismissal after Metroline withheld his contractual sick pay.

Mr Singh was signed off sick following an invitation to a disciplinary meeting. Metroline believed that he was trying to avoid the hearing and so put him on SSP instead. There was a clause in Mr Singh’s employment contract that allowed Metroline to withhold company sick pay if, following an investigation, his absence was found not to be genuine.

The mistake Metroline made was failing to carry out that investigation which meant they were in breach of Mr Singh’s contract.

Nurses, occupational therapists, pharmacists and physiotherapists can now sign statements of fitness for work, also known as a GP fit note.

The question for the tribunal was whether Metroline’s breach was so serious that it went to the root of the employment contract entitling Mr Singh to resign?

Metroline tried defending Mr Singh’s constructive dismissal claim by saying that it withheld his contractual sick pay to encourage his participation in the disciplinary process.

This argument was rejected by the Employment Appeal Tribunal (EAT) who decided in favour of Mr Singh. The EAT held that Metroline’s decision to withhold his contractual sick pay caused a substantial reduction in Mr Singh’s earnings and was therefore a fundamental breach of his contract. He claim for claim was constructive dismissal was made out.

Metroline may not have lost this breach of contract claim if they had carried out that investigation into whether Mr Singh’s sickness absence was genuine. That said, making judgements about an employee’s state of health and their fitness to carry out their role also carries risks and complications for the employer, especially where there is a potential disability issue.

That is the subject for a separate legal update on sickness absence and capability procedures. In the meantime, employers should consider taking legal advice before trying to withhold either contractual or statutory sick pay because they suspect the sickness is not genuine. Our team of employment lawyers are on hand to help.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 26 May 2023
  • Employment

Avoiding discrimination in flexible working requests

The right to request flexible working is currently available to employees with at least 26 weeks’ service and is set to be extended further under new Government reforms.

art
  • 25 May 2023
  • Corporate and M&A

Management Buyout – Top 5 things to consider

A management buyout is a financial transaction in which a member of the management team purchases the company from its registered owner. MBO’s usually occur in private companies in an effort to enhance profitability and simplify strategies.

art
  • 25 May 2023
  • Employment

Carer’s Leave Bill set to become law

On 19 May 2023, the Carer’s Leave Bill had its third reading in the House of Lords, and upon receiving Royal Assent, will become law. There is not yet a date for the implementation of this bill, however it is likely that this will happen relatively quickly upon receiving Royal Assent, so is definitely one to keep an eye on.

art
  • 18 May 2023
  • Immigration

Navigating SOC Codes

When it comes to UK immigration, understanding the intricacies of the system is vital. One significant aspect of the process revolves around Standard Occupational Classification (SOC) codes. SOC codes play a crucial role in determining the eligibility for an individual to apply for a work visa, assessing skill levels, and matching individuals to appropriate job roles.

art
  • 17 May 2023
  • Litigation and dispute resolution

Conflicts and experts: Lessons from Arrassey v Nelsons

We often hear about conflicts of interest in both legal and non-legal settings, and how this can affect professionalism in certain industries. In the recent case of Arrassey Properties Limited v Nelsons Solicitors (Case No. F55YJ238), which concerned a property dispute.

art
  • 16 May 2023
  • Employment

10 facts an employer should know about holding personal data

Personal data is any information that can be used to identify an employee.