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Employment Law Update

Michael Delaney
Partner – Employment, MAB Law

Sick Notes replaced by “Fit Notes.”

On 6 April “fit notes” replaced sick notes with the intention of placing an emphasis on what an employee can do, as opposed to what they cannot do. The Government has stated that GP’s will now only be able to certify that an employee “may be fit to work” rather than that they are “fit for work.” This shifts the onus over to the employer to carry out their own risk assessment to determine whether an employee is in fact fit to return to work. The main changes from the old sick note are:

• The removal of the “fit for work” option;
• A new option for a doctor to advise if an employee “may be fit for work” with some support;
• Tick boxes for doctors to suggest common ways to help a return to work. Examples include a phased return to work; altered hours; amended duties; and/or workplace alterations;
• Space for a doctor to provide information on how the employee’s condition will affect what they do and suggesting ways in which they may be able to work.

The “not fit for work” box is still an option and is likely to remain the most commonly used feature for short term absences. The maximum duration of a fit note issued in the first six months of a medical condition will be limited to three months.
The introduction of “fit notes” places increased pressure on employers to ensure that their policies are up to date. A prudent employer will ensure that their sickness policy sets out the criteria which will be taken into account when determining whether an employee can resume work once a doctor has declared that they may be “fit for work.”

The right to request time off for training and study.

Employees working for employers with 250 or more staff now have the right to request time off work to undertake training or study. This right will be extended to all employers, regardless of size, from 6 April 2011. The right applies to employees who have completed at least 26 weeks’ continuous service and the training or study must be for the purpose of improving the employee’s effectiveness at work and the performance of their employer’s business. Employees are generally limited to one application in any 12 month period and there is no necessity that the training will result in a formal qualification.

Father’s days and paternity pay

The new legislation on additional paternity leave came into force on 6 April 2010 and applies to parents of children due on or after 3 April 2011, or to adoptive parents who are notified of having been matched with a child on or after that date. The aim of the new legislation is to allow eligible employees (primarily fathers) to take up to 26 weeks additional paternity leave to care for a child under the age of one or for an adopted child in the first year after being placed for adoption. The eligible employee can only take this additional paternity leave once the mother has returned to work and the child is over 20 weeks old or the child has been with its adoptive parents for over 20 weeks. Additional paternity leave must be taken in multiples of complete weeks and as one period with a minimum period of two consecutive weeks and a maximum period of 26 weeks.

An employee will be required to give a minimum of 8 weeks written notice of their intention to take additional paternity leave and the employer must confirm this entitlement within 28 days of notification. An employer should ensure that their policies on paternity leave are amended by mid 2010 at the latest so that employees are aware of the additional rights well in advance of 3 April 2011. The standard rate for Additional Statutory Paternity Pay has also increased to £124.88 per week or 90% of the employee’s normal weekly earnings if they are lower than this amount. This Additional Statutory Paternity Pay is only available where the mother was entitled to maternity allowance, statutory maternity pay or statutory adoption pay.

Companies seeking more information or guidance, can contact Michael Delaney, Employment Partner, MAB Law on 01923 208817 or by email at michael.delaney@mablaw.co.uk