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At the recent British Medical Association (‘BMA’) conference, Medical professionals recommended that workers should be able to sign themselves off for sick leave for up to 14 days (such a process is known as “self-certification”). Under the current law, a worker cannot be required to obtain a fit note from a doctor until after 7 days. The new proposal seeks to address concerns over GP’s workloads and how they can be reduced to improve the service for patients.
Dr Vautrey, deputy chairman of the BMA’s GP committee, insists that patients can and should be trusted. He has argued, “The vast majority of people want to work, they don’t want to be off work for significant amounts of time.” However, despite this endorsement and the obvious benefits to the health industry, many commentators are concerned that such a change in the system would be open to abuse and employers would be adversely affected. Some have gone as far as to label the scheme a “skiver’s charter” and there is a worry that such an extension could lead to a rise in absenteeism and incorrectly awarded Statutory Sick Pay.
In relation to the proposal of an extension of self-certification, a Department of Work and Pensions spokesman has said: “We have no plans to change the existing policy.” Given the pressures on the NHS we believe the proposal has merit and the government should consider what has been proposed. The fears expressed could be managed by changes to the employer’s sick pay procedures which could safeguard employers.
The self-certification procedure that already deals with absences for less than seven days could be extended. Employees can be required to give details of the illness and what steps they have taken to address the medical issue that has caused them to be absent from work. Given the brief description given by doctors on fit notes, self-certification could provide employers with more information than they often have now. Many employees find it difficult to get appointments for minor conditions within the seven day time period. Furthermore, it is questionable how much of an assessment is actually made by a GP when signing off a fit note. Earlier this year, doctors at the BMA's GP conference said patients should get a morning appointment with their GP, or risk the poor judgement of a doctor exhausted by a day of “decision fatigue.”
Even if doctors are not decision fatigued they are often forced to take at face value what the employee says about their condition. In many minor cases an employee is self-reporting a condition and the doctor has to rely on what they are told e.g. stress and anxiety which is not easy to objectively assess.
If the employee obtains a fit note it is not decisive evidence of ill health. Employers are generally obliged to take at face value what has been said unless there is clear evidence that the employee is falsely representing their fitness for work. If employees were required to self-certify the employer could challenge what was said or require more information and if dissatisfied with the answers given, require the employee to attend a medical appointment with the employer’s own doctor or occupational health consultant.
Any false declaration may amount to misconduct or gross misconduct and where someone "pulls a sickie” and they give an untruthful account this may amount to dishonesty and to a fundamental breach of trust and confidence. Employers may be reluctant to take this step unless there is compelling evidence as they would have to satisfy the requirements for unfair dismissal laid down in BHS v Burchell  IRLR 379. However, case law has demonstrated that employers do have legal protection against dishonest workers. This should help to meet some of the concerns surrounding the proposals to extend the self-certifying process.
In addition, an employer can probe the worker further to ascertain the severity of the condition and the impact it is likely to have on the workers’ abilities in the workplace. Employers usually provide their own version of the Fit note, thus such forms can be tailored to reflect the level of detail preferred by the employer. Therefore, it is arguable that there will be greater transparency under the self-certification procedure as traditionally a worker may just submit a doctor’s note which declares him or her unfit for work without further elaboration and the employer has little opportunity to challenge the information given.
There may be legitimate concerns that an extension to 14 days may discourage genuinely unwell workers from seeking medical attention where such attention is needed. Neil Carberry, director of employment and skills at the CBI, said: “When someone is sick enough to be off work for a week, they should try to see a doctor.”
To achieve an overall balance, GP leaders have urged the NHS to enable patients to bypass seeing a family doctor and get treated by other health professionals such as physiotherapists, mental health specialists or experienced nurses instead to help tackle the “pressure cooker” of GP work. A pilot project in Devon which has encouraged those with minor mental health problems to self-refer to a therapist is reportedly working well. As with many other health issues the answer may lie in the provision of information to point those in need of an expert opinion in the right direction. This may serve to relieve pressure on doctors whilst ensuring individuals receive the care they require and allowing employers to have the policies in place for managing absence work.
If the BMA proposal was accepted employers do not need to fear that it would be a “skiver’s charter.” Employment policies could be amended to provide them with protection against the dishonest worker. Case law also demonstrates that the courts are willing to find a repudiatory breach of contract where a worker “pulls a sickie.”
Self-certification seems to be well-suited to mental health diagnosis (at least in the short-term) and may serve to cultivate more transparency between employer and worker in relation to the latter’s condition and capabilities. Perhaps more information on alternative health services such as therapists should also be provided by employers alongside any scheme to extend self-certification so that those who genuinely require care are better placed to know where to turn.
This article was written by Joanna Marshall.
For further information, please contact Joanna Marsall on +44 (0)20 7203 8967 or email@example.com