Tips

Since the National Minimum Wage Act came into force in the 1990s, it has been legal for employers to use devices such as service charges, tips, gratuities and cover charges to count towards payment of the national minimum wage in certain circumstances. The Government believed that this needed to be reviewed and following consultation on the issue towards the end of last year it has now announced its intention that the use of such methods to make up the national minimum wage should be outlawed. It is planned that the practice will be made unlawful from 1 October 2009. 

Fit notes, not sick notes

Last year the Government undertook a review of ill health welfare benefits and introduced a new system whereby those unable to work due to ill health or disability could claim employment and support allowance (ESA) instead of incapacity benefit. Under the new system Claimants have their capability assessed by an expert health professional, who focuses on what they can do, rather than what they can’t do. The purpose of the reform was to ensure those who can work are given support to try to do so. The reform is also aimed at the perceived long term sick culture.

At the end of May 2009 the Government introduced consultation on a new regime of fit notes to replace the current sick note regime. The idea, as proposed, is that the GP must certify that an employee is either:

• Fit to work;
• Not fit to work; or (new development)
• May be fit for some work now.

When a doctor places a patient in this final category he or she must then go on to describe some of the effects of the employee’s condition. It is proposed that the GP should then indicate appropriate arrangements to help an employee back to work e.g. workplace alterations, altered hours, phased return etc.

On the one hand this may be seen as a positive move to be welcomed by employers and will arguably give GP’s more time to pause and think about the employer’s situation, rather than simply supporting their patient’s views. The TUC however is concerned that the process could become a dialogue between GP and employer and that an employee may be forced back to work when he/she does not feel able to work. The intention of the reforms is certainly to improve communications between the employer and the GP in relation to any ill health situation.

There are various potential legal problems however. Whilst the GP may be able to give good information about an individual’s symptoms and their incapability/prognosis, without proper occupational health training the fear is that GP’s will not have enough information about the individual’s work to be able to make a proper assessment of the adjustments needed or indeed what adjustments are really possible. Employers, wary of their obligations under the Disability Discrimination Act 1995 to make reasonable adjustments to allow  return to work, may find that the doctor’s recommendations, although not legally binding, may be used as evidence of potential reasonable adjustments to be implemented. Clearly, the employer can still argue that any adjustments recommended by the GP on a medical basis are not reasonable for business reasons, if they follow the case law on the Disability Discrimination Act. 

An interesting and further grey area is the situation (which is likely to frequently arise) whereby a GP and an employee disagree on what they can or can’t do. In current employment law if an employee is signed off sick by the GP, then he or she cannot be forced to work by the employer until they are feeling better. Under the new system however it is possible that a GP may consider light duties are possible but an employee does not want to do such work. This may lead to an employer insisting on the modified return to work and the possibility of disciplinary sanctions if the employee resists. 

As you can see, although the sick note system had its disadvantages, certainty was not one of them. The new system is likely to cause confusion and new case law triggering further potential liabilities for employers.