How legally binding is a "fit note" from GP

[LikeTheFruit]

Hello

I'll try and keep this brief. I'm in late stages of pregnancy is a very physically and mentally demanding job. I asked repeatedly to no do out of hours work from 32 weeks but was refused and ended up with a work rota in excess of 64 hours a week for 2 of the 6 weeks (adverse came out under EWTD). I tried again to explain that this was not going to be sustainable in my late third trimester but was refused any adjustment. I therefore went to see GP who provided a "statement of fitness for work" stating no out of hours and no more than 40 hours on any given week.
My question is what is the legal backing of this note - can it be ignored?

Thanks

Average not adverse!

I believe it is treated as advice from your doctor which employers should take into account but are not legally required to.

Firstly have they done a pregnancy risk assessment, and if so what did it say about this? Not doing a pregnancy risk assessment isn’t just poor practice, it’s discrimination.

As for the note, they would be not unreasonable but almost certainly acting unlawfully to ignore it. At the best of times it’s dodgy to ignore medical advice about employees but with a heavily pregnant employee very likely to be unlawful discrimination.

But the question is what you’re prepared to do about it if they don’t comply. You could complain, or get signed off sick entirely if you really cannot cope with whatever they try to make you do (which would be totally reasonable - I think I would struggle with those hours at the best of times!)

Thanks both. No, no risk assessment done yet for this trimester!

My fit note stipulated no out of hours work (which has been fulfilled) and no more than 40 hours on any given week. Just received new rota with a weekly average of 46 hours! Feel like I'm banging my head against a wall!

If your fit note makes it impossible to do your job then your employer can insist you are signed off sick as you are not fit to fulfill your role. In the later stages of pregnancy this means you can be made to start your maternity leave early.

If out of hours work is an essential part of your job then your employer can insist on you taking your mat leave early (from 29 weeks) if they can’t make any adjustments. So my guess is if that’s where in your pregnancy you are then that explains why they don’t care about the rota. You need to decide if the extra out of hours is worth taking your mat leave early. To buy you some time you could get a letter from your GP stating categorially that they recommend you are signed off until a risk assessment has been made.

@Todaythiscouldbe thanks. Fit note well within duties to fulfil role so this shouldn't be an outcome.

@GrumpyHoonMain thanks for your reply. Out of hours work is not essential. There are actually several other people on my rota who are signed off on call at the moment. They are very capable of making the adjustment but seem to be unwilling for an unknown reason. Never felt less values as an employee. Unfortunately, only rotated into this job last week from another hospital (doctor),last place could not have been more accommodating (taken off night shifts without having to ask etc)

I'm afraid SproutMuncher is wrong. Failing to carry out a pregnancy risk assessment is not automatically discrimination. It may be discrimination but it depends on the circumstances.

Similarly, a GP's fit note is not binding on the employer. It is advice from the GP. Failing to follow the GP's advice is not unlawful and is certainly not automatically unlawful discrimination. However, if the employer does not follow the GP's advice and the matter ends up in tribunal they will have to justify their decision. If they have good reason (e.g. an independent assessment from another healthcare professional more familiar with your work) they may be ok. If they do not have any evidence to back up their decision to ignore the fit note they are, to say the least, taking a risk.

prh47bridge is correct. I am a GP. I can issue recommendations, but I only have the patient's assessment of what adaptions are possible for their employer - and the patient isn't necessarily aware of all the obstacles that an employer might have to implementing my advice.

For example, I might recommend working no more than 10 hours in a shift but, from the employer's point of view, that might be impossible to implement because that would then leave a second employee working alone in an unsafe situation.

I would ask to be referred to OH, OP.

OP I knew from the minute i started reading this that you were a doctor - me too and this sounded all too familiar.

It's rubbish but for me it takes so long to get sorted that it becomes pointless to try. I would consider starting your mat leave early. You can start it at any time with very little notice once you're in late pregnancy. I know you shouldn't have to but it's just horrible being treated like that and it might do your head good to just opt out of the situation entirely.

The guidance is if the employer cannot accommodate the recommendations on the fit note then the employee should be considered signed off. You do not need another sick note.

This gives you all the info you need: assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/578032/fit-note-guidance-for-employers-and-line-managers.pdf

Many years ago when pg (so it may be different now) my GP advised me not to go to a specific conference due to travel time and a few other things. To be honest I really didn’t want to go and it was pointless as it was regarding something that was happening while I was on ML but me not going might be discrimination or similar so I had to go. I explained to my fab GP who said she strongly advised me not to go and would provide a letter to that effect if necessary
Once I told HR they said that given this even if I wanted to go they couldn’t let me if it was against my GPS advice
No idea if this is helpful but they were very adamant that going against a GPs recommendation was a huge no no

Get yourself to Occy Health ASAP OP. You can self refer within a Trust, or at the most you may have yo get your supervising consultant to refer you.

Gotnopokerface is right - you need an assessment, with no assessment in place they are more likely in breach of health and safety legislation. On Call - is this a lone on call - you are classified as a vulnerable person
Anti social working hrs - what kind of work is it and if it is physical this is even more of a reason to get an assessment done and provide alternative/adjusted employment in the work place
What measures have they put in place to protect you and your unborn child?

@prh47bridge my reading of reg 16 has always been that every employer should have a risk assessment of the risks to new and expectant mothers - now I know that the OP is a doctor, I would be astonished if the her employer has no assessment for its pregnant employees.

I also think that there is clearly sufficient in the OP’s information that she has highlighted at 32 weeks if not before a specific risk to her health or that of the unborn child, which should trigger action, so I stand by my view that it is discrimination.

Don’t think I said it was “automatically” discrimination in every case, and certainly didn’t mean to convey that, but reading back I could have worded it more clearly.

Hi OP, I work in same job and was signed off from on calls and any shift exceeding 10 hours or overnight when I was 18 weeks pregnant!
It was occupational health who wrote this recommendation and my understanding is that hospital management would be incredibly stupid to go against this, so maybe try and see them urgently.
I would imagine that ignoring a GP fit note would be as idiotic mind you- if any harm came to you or your baby during work hours they would have no leg to stand on.
Have you spoken to BMA?

Thanks for all the advice. I'll make an appointment with OH. I did do risk assessment in previous rotation just not since rotating to new hospital (although within same Health Board as the last). I've also spoken to defence union to see where I'd stand if I were to make a mistake due to working over recommended hours/duties. They were very helpful. Have an appointment with line manager too so fingers crossed this will quickly be sorted out.

Very frustrating as I am capable of the day to day work, it's just 46 hours a week is a bit much at the moment and it would only involve a half day a week off extra to get me to recommended hours.

Unfortunately I left the BMA several years ago (whoops!).

Information on Health and safety during pregnancy and on return to work can be found here maternityaction.org.uk/advice/health-and-safety-during-pregnancy-and-on-return-to-work/

Basically your employer has a duty of care to complete a risk assessment if they don’t you can go down the discrimination route.

Or alternatively you could go off sick, however if you are off sick with a pregnancy-related illness in the last four weeks before your expected week of childbirth, your employer can ask you to start your maternity leave.

www.maternityaction.org.uk/wp-content/uploads/2015/05/Sickness-during-pregnancy-and-maternity-leave-2017.pdf

My ex employer made me start maternity leave 6 weeks early because I couldn't heavy lift and the job role involved heavy lifting. If you can't do your job role they may well do the same.

Some good advice here OP definitely push for the maternity risk assessment