“Let your staff know of the change and then they can use the updated protocols when needed.” - Pam Molyneux

First update, from 1 July 2022, pharmacists are able to certify fit notes

In order to reduce pressure on doctors, particularly GPs, the Department for Work and Pensions (DWP) and the Department of Health and Social Care (DHSC) have proposed that nurses, occupational therapists, pharmacists and physiotherapists should be able to certify and issue fit notes.

For anyone who has been off work with illness for more than seven days, a fit note provides evidence to their employer about the absence and any relevant advice on how to support the employee to remain in or return to work.

So these new rules lift the requirement that only doctors can issue the notes.

The aim will be to support and empower better conversations about work and health between employers and staff by making it easier to get this advice certified by the most relevant healthcare professional.

This change follows legislation changes in April 2022 which removed the need for fit notes to be signed in ink. This change makes it possible for eligible healthcare professionals to certify fit notes digitally and also for patients to receive their fit note via digital channels (where GP IT systems support this).

BMA England GP committee deputy chair, Dr Kieran Sharrock, said: “The BMA has been clear for many years that it may not always be necessary or appropriate for a GP to issue a fit note, especially when a patient has seen a different member of the practice team for their condition, such as a nurse or physiotherapist.”

Recommended action to take: Let your staff know of the change and then they can use the updated protocols when needed

Head on over to our resources section for a suggested communication you can use to send to them

Second update, a case around menopause and that it can be considered a disability. It’s a long one, so here are the headlines:

This case is an important reminder that as the employer, you need to have knowledge of a disability in order to be discriminatory against it.

That knowledge needs to be either:

 - actual, in that the employee has disclosed the issue in such a way that you are aware it was a disability, or

 - constructive, where the employee has disclosed symptoms that suggest a significant effect on their day-to-day life which ought reasonably to be obvious could amount to a disability.

This does not mean that you can turn a “blind eye” to the obvious suffering of an employee would have a defence before a tribunal, as ‘constructive’ knowledge is also part of the legal test. However, in cases such as this, where the claimant admitted to ‘downplaying’ her symptoms in order to not appear unreliable, as an employer you could be forgiven for failing to notice more subtle signs of a potential disability and taking action against an employee.

SUMMARY

A menopausal employee had her claim for disability and sex discrimination rejected by the Employment Tribunal (ET), despite the ET finding that her menopausal symptoms could be a disability.  

LAW

Equality Act 2010

Section 9:

(1) A person (P) has a disability if –

(a) P has a physical or mental impairment; and

(b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities…

(2) This Act (except part 12 and section 190) applies in relation to a person who has a disability as it applies in relation to a person who has a disability; accordingly excepting that part and that section) –

(a) A reference (however express) to a person who has a disability includes a reference to a person who has had the disability; and

(b) A reference (however express) to a person who does not have a disability includes a reference to a person who has not had the disability

Schedule 1

A long-term adverse effect is defined in as:

(1) The effect of an impairment is long-term if –

(a) It has lasted for at least 12 months;

(b) It is likely to last for at least 12 months; or

(c) It is likely to last for the rest of the life of the person affected.”

There is a statutory code of practice to be taken into account in determining questions relating to the definition of disability issued in 2011, the relevant parts of this are as follows:

A1: A person has a disability for the purpose of the Act if he or she has a physical or mental impairment and the impairment has a substantial or long term adverse effect on his or her ability to carry out normal day to day activities.

This means that in general:

(1) The person must have an impairment that is either physical or mental.

(2) The impairment must have the adverse effects which are substantial.  

(3) The substantial adverse effects must be long term; and

(4) The long-term substantial effects must be effects on normal day to day activities.

FACTS

The claimant worked as a typist at a law firm and went off work as sick on a number of occasions for various reasons, including childcare and optical issues, and stomach problems which, on one occasion, was confirmed by a doctors fit note to be “actually menopause”. The claimant also sent an email to a partner at the firm, telling him that she had been diagnosed as menopausal, and her symptoms were “quite unbearable”. She also linked lateness to hot flushes, and her need to change her clothing as a result. The response she received thanked her for the information, but did express that she had shared “a little bit too much information…”.

The claimant was working towards a conveyancing apprenticeship, and was given a role supporting the lead conveyancer, who had reduced their working days from 5 to 3 in preparation for retirement. The claimant was responsible for “keeping things rolling” whilst the lead conveyancer was off work, by contacting various parties and ensuring the workload was progressing. This role was of critical importance to the respondent, in order to continue with their conveyancing work.

She was eventually dismissed because her “dependability was immediately in question”, including timekeeping problems, extended breaks and absences. She subsequently brought a claim, alleging that the dismissal was discriminatory on the basis she was disabled by virtue of her menopause symptoms, and because she was a woman.

EMPLOYMENT TRIBUNAL (ET)

It was accepted by the ET that the effect of her menopause symptoms were such that they would meet the definition of disability as set out in the Equality Act 2010. However, it rejected the argument that these were the reasons underlying her dismissal.

Instead, the ET upheld the respondent’s argument, that the dismissal was not discriminatory due to her disability, but due to the claimant’s unreliability and “alarming” number of absences “We find it was not just the absences: it was the frequency of them … and their length…. Essentially in this job reliability was critical and the claimant became unreliable.”

Furthermore, the ET found that the respondent did “not have the requisite actual or constructive knowledge that the claimant was disabled” to discriminate against her on that basis.

The ET could also find no evidence that a male comparator would have been treated differently had they also taken time off to care for their child.

Third update, another case, this time on long Covid and whether it is considered a disability under the Equality Act. It’s another long one, so here are the headlines:

The Equality and Human Rights Commission (EHRC) has responded to discussion of the various symptoms related to Covid-19 that are often referred to as ‘long Covid’ and in particular whether they would constitute a disability under the Equality Act.

“Given that ‘long Covid’ is not among the conditions listed in the Equality Act as ones which are automatically a disability, such as cancer, HIV and multiple sclerosis, we cannot say that all cases of ‘long Covid’ will fall under the definition of disability in the Equality Act” the EHRC said.

However, it goes on to clarify that this does not affect whether ‘long Covid’ might amount to a disability for any particular individual; it will do so if it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Whether or not this is the case will be determined by the employment tribunal or court considering any claim of disability discrimination, the Commission explains.

 It concludes: “To support workers affected by ‘long Covid’ and avoid the risk of inadvertent discrimination, we would recommend that employers continue to follow existing guidance when considering reasonable adjustments for disabled people and access to flexible working, based on the circumstances of individual cases.”

 As with any long-term absence, employers should ensure they are conducting regular welfare meetings with affected staff members and reviewing the support measures which could be implemented to assist them in the workplace.

Employers should also keep in mind that long Covid will affect each individual differently, so adjustments must be personalised to each employee, in line with their specific needs.

Adopting a one-size fits all approach in this situation would prove ineffective for both the employee and employer.

EMPLOYMENT TRIBUNAL

In this case, Burke v Turning Point Scotland, the employee had Covid in November 2020. Whilst Covid-positive, he experienced mild flu-like symptoms. However, following this he suffered from ongoing extreme fatigue, sleep disruption, loss of appetite, joint pain, anxiety and headaches, causing him to take a prolonged period of sickness absence. 

Two occupational health assessments were conducted as part of a formal medical capability process from the employer. The employee did not return to work during this time and was ultimately dismissed on the grounds of ill-health in August 2021. The employer highlighted that there were no alternatives or adjustments which could be implemented to facilitate a return to work in the near future. 

The employment tribunal concluded that, although he had good days and bad days, overall, his long-Covid (diagnosed as post-viral fatigue syndrome by his GP) caused a substantial and long-term adverse effect on his ability to undertake day-to-day activities. In deciding this, the ET considered his inability to walk to the nearby shop to get a newspaper, and him needing help with cooking, ironing and shopping. He also had difficulty concentrating, reading for any length of time and his sleep was disturbed. Therefore, he was deemed to be disabled for the purposes of the Equality Act. 

The ET will now separately consider whether he was unfairly dismissed and/or subject to disability discrimination.