If an employer doesn't accept a 'Fit Note' recommendation does that make me Unfit To Work?

[PavlovtheCat]

My GP has given a Fit Note advising I am Fit for Work with my hours adjusted to 4 hours per day for 6 weeks due to an ongoing health problem, while waiting for a hospital consultation appt to discuss surgery relating to my health problem. I have completed a period of 4 weeks phased return on a Fit Note, back to my normal hours before this new Fit Note as I am not ready to return on full hours.

I emailed my Boss, anticipating this, last week, as both me and my GP feel this is the best way to keep me at work constantly until treatment is discussed, rather than being off sick and then back and then off sick again continually as has been happening when trying to manage my normal hours.

Today I took in the Fit note, and we had a meeting about it. My Boss has said this needs to be 'authorised' by her Boss, as per procedure for all reduced hours suggestions over 2 weeks (she has not done it so far, but guess what not expecting further absences). If he does not agree to it, then she states the only way I will be able to reduce my hours is to reduce my contract hours, albeit temporarily, and thus a reduction in my salary (according to HR manager who she spoke to about it)

If my Fit Note is not approved, does that mean I am not 'fit for work'? and should be off work sick whenever I cannot do my contracted hours (for which I get paid full company sick pay) or should I accept a temporary adjustment to my hours and my pay even though the reason I am working less is due to a medical condition.

Part of me thinks, if this is the way they will view it, then I will need to view it as either I am fit to work my contracted hours, and do so, or I am not fit to work my contracted hours and will call in sick on those days and just continue this seesaw and unreliability. Another part of me thinks that maybe this is just going to prolong what may become an inevitable consequence of my medical condition - a permanent reduction in my contracted hours.

I think your work have it all wrong. They shouldn't be changing your contract, but paying you sick pay for the hours that you don't work.

As far as I understand it a fit note means you are only able to work those hours and if it cannot be accommodated then you are not fit to return to work.

Does the note itself have any guidance on it?

yes, it states 'not more than 4 hours per day regularly' for 6 weeks (regularly means that on the odd occasion when my health is ok as I have good days and bad days, I can do a bit more, but not on a regular basis in those 6 weeks).

'Amended duties' ticked, to incorporate duties already changed, to demonstrate she suppport amended duties.

ok, to technically then, if this is not approved tomorrow, I should come home?

noren that's interesting, can they do that? so if I work 7.5 hours, pay me 3.5 hours sick pay and 4 hours from my normal salary? I think they only work on half days though, so not sure how it would work out. Ie, if I leave work in a day before half way through due to sickness it counts as a whole day sickness absence, but if I leave after half way through my working day due to sickness it counts as half day sickness absence, regardless of how many hours I have actually worked.

but worth thinking about talking to them about it.

I think, what I am thinking is - can they say that by reducing my hours contractually and thus my salary, they are therefore abiding by the GP recommendation to work restricted hours, as they have reduced the hours as suggested. Can I see this as them not being able to accommodate the requirements of the Fit Note, or are they accommodating it by reducing my contracted hours and salary, as the note does not say 'on full pay'. Or is it assumed that if it is recommended for a temporary period due to medical grounds that it would be at full pay? I can't find anything to suggest either way.

noren I did however read up about mixing sick and reduced hours and I can't do that as employer can't claim ssp if I work even one hour. Unless they use company sick pay to fund it and not claim ssp back. Doubtful they would want to be out of pocket.

And, so if I said no I can't work those reduced hours on reduced pay, am I refusing to abide by the fit note? In that circumstance, if I cannot do that, or am unwilling to do that, does it then become a sick note?

What have occupational health said? Your work do not have to agree to your phased return and then you ask your gp for sick note as you are not fit at present for your working hours

Look at this - the employers guide
www.dwp.gov.uk/docs/fitnote-employer-guide.pdf

Includes
If it is not possible for you to provide the support for your employee to return to work, you and your employee should use the Statement as if the doctor had advised ?not fit for work?.
Your employee does not need to return to their doctor for a new Statement to confirm this.

Yep, so technically, my employer saying saying 'no' to the Fit Note means it automatically becomes a Sick Note and I don't have to go back to the gp? Ok. Get that bit. But, what if they say 'yes, we can agree to the changes in the fit note, but will reduce your salary' ? Is that still agreeing the fit note? Do I have to accept that? This is the bit where I am unsure.

OH referred me to independent gp who confirmed diagnosis in his eyes and confirmed this was a disability according to the equality act and that it was likely to cause further problems in the future. He recommended a new chair, which I have. Bt that was in August, not spoken to them since. I can get a referral back to them but it will take 2 weeks at least.

My previous employer (very large company, very by-the-book HR department) told me when signed off long term sick that if I wanted to return on reduced hours for more than 4 weeks I would only be paid for the hours I was working, however if I was signed off work sick I would be on full pay for the length of time stated in my contract (think it was about 6 months) so financially I was actually better off being signed off sick

I would think that if they agreed to the fit note but you refused to accept the reduced hours you would be in breach of your contract as the dr has agreed that you are well enough to be in work although am not certain of that.

^What happens if the employer says that the employee can come
back at reduced duties but at reduced pay?
An employer cannot simply change the contract of an employee and reduce
their pay. The employee should be employed under the same conditions as
before they went on sick leave, but with modifications to assist their
transition to work. Where an employer does seek to use recommendations
in a medical certificate to alter a person?s pay or conditions their
representative should seek advice from their union. If a person is on
statutory sick pay, reduced sick pay, or benefits and they return on reduced
hours you should seek to ensure they are no worse off as a result.^

from www.tuc.org.uk/extras/fitnote.pdf

I have been in this position and I still received all my pay as normal and it wasn't counted as an absence. I'm not an expert on this but I really would suggest having a chat with your union about it.

noren that is fab thank you. It is not a permanent change that the GP has suggested, but for 6 weeks (until a hospital review) so it is as you say returning with modifications to assist my return to work, with the full intention that as soon as I am able to return to my full working hours I do so. I will take a look at that link and send to my Line manager, and also talk to my Union about it.

As it happens, the formal stance today has been 'no agreement of the Fit Note recommendation of reduced hours without OH consultation' and further told (verbally) that a certain section of policy states, as rockchick states pay should be altered after 4 weeks of 'amended duties' however, when my line manager and I looked through the sickness absence policy, we found a section which stated that the phased return can be tried for 3 months before it is deemed as not successful and alternatives need to be considered (such as change of contractual hours).

Also, as my condition is a Disability, my line manager (who is fighting my corner) states that there is scope to amend the sickness absence policy to for example extend a phased return if it means getting the disabled employee back to work. Which in this case it does.

She has gone down this route first, and if not successful, she will be looking at the route of me just going in each day, and working what I am physically able to until my condition makes it impossible to work, then she will 'send me home' as 'sick'. According to the sickness management policy if I am sent home after half a working day has passed it in fact does NOT count as a sickness absence. So she thinks that I should just take each day as I can, work what I can and leave under this section of the sickness policy each day I can't do a full day.

Also, as you said rockchick the ultimate situation is that I work when I can work my full hours, and when I cannot, I have to be off sick completely. I had hoped my employers would see this is not cost effective as it is better surely to have me there every day for 4+ hours, than there for 1 week at full hours then off for two, then back for 1-2 then off for two etc. Even my line manager thinks it makes sense.

noren I have just had a look at that link and there are several sections that are really helpful, so I have emailed it to my line manager. So thanks again.