rights of long term sick employees to paid sick leave are directly enforceable

Posted on March 23, 2012 by Martin Malone

Dominguez v Centre Informatique du Centre Ouest Atlantique is a decision of the CJEC (European Court) concerning the Working Time Directive which looked at whether a provision of French law imposing a rule that workers on sick leave must have actually worked for at least a month in a leave year before they could take, or be paid for, any annual leave accrued under the French equivalent of the Working Time Regulations was permissible. The court said no, and then went on to say that the relevant provisions of the Working Time Directive are "directly effective". The principle of "direct effectiveness" means that EU Directives which meet certain criteria (as to clarity) can be enforced against the State or an emanation of the State (in other words, Government departments and other public bodies, including some previously nationalised organisations), even if a particular provision has not yet become part of national law.

Why is this case important for us – after all we don’t have the same rule in UK law? Continue reading →

Newsletter – fit notes – employers beware!

Posted on July 25, 2010 by Martin Malone

As previously reported in our blog a website is offering fake new-style Med 3s which include a ‘Statement of Fitness for Work’. The web-site charges £9.99 – and it’s “buy one and get one free”.

The website concerned (http://www.doctorsnotestore.com) says it provides “Guaranteed 48 hour delivery of authentic looking replica doctors sick note or medical certificate. Written on official doctors notepaper, with real stamp“. It says “all fake-sick notes come with an official sick note stamp” and offers the ability to choose from doctors at medical centres in London, Manchester, Birmingham, Glasgow – or any other area.

It also says that documents purchased from it “are to be used for entertainment purposes only. We do not condone intentional false absence from an employer or educational institution. We do not condone illegal use of these documents“. But then it goes on to say “Print a homemade sick note and you are much more likely to be caught out“.

Fake sick notes are not new. A BBC news item in August 2008 suggests they have been around since at least 1997. However their abuse for fraudulent purposes continues to be something about which employers and HR departments should be on their guard and the development of new fake fit notes is a prompt for a timely reminder.

More seriously, it seems that the previous Government’s introduction of “fit notes” to replace old-style “sick notes has hit an unexpected snag. The new fit notes were introduced in April (by the less than snappily named Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010). They enable a doctor to select a ‘may be fit for work’ option if they think that returning to work will help the individual concerned. The fit note form provides tick boxes for a doctor to suggest, where appropriate, common ways for an employer to support the individual’s return to work and also provides space for the doctor to give general advice.

The unexpected snag was highlighted at a recent CBI sickness absence conference. The snag is that although all doctors can tick the boxes, many are apparently unable to write clearly. The Daily Telegraph report on the conference says that the fit-note “…has been billed as the cure to Britain’s sicknote culture but has been laid low by a more serious affliction – doctors’ illegible handwriting“.

fit notes replace sick notes in April

Posted on March 23, 2010 by Martin Malone

As from 6 April 2010 the various forms of workers’ sick note (also known as a medical certificate or a doctor’s statement) are to be replaced by a single fitness for work medical certificate or “fit note“.

The basic law is not changed. As now, from the eighth day of sickness absence employers will be able to require employees to provide formal medical evidence about their sickness to support a claim for Statutory Sick Pay (similar evidence is also required for claiming health related State benefits). Traditionally this has been done by the employee providing evidence in the form of a “sick note” from a doctor.

The general idea is that the new medical certificate will enable the doctor to say that a person may be fit for some work rather than simply that they are not ready to resume normal work.

The detail, including the wording of the new “fit note”, is contained in regulations (the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010, SI 2010/137). The regulations set out a form of medical certificate headed “Statement of Fitness for Work for Social Security or Statutory Sick Pay”. The main operative part, signed by the doctor and providing a space for notes, provides:

“I advise you that: you are not fit for work OR you may be fit for work taking account of the following advice: If available, and with your employer’s agreement, you may benefit from: a phased return to work; altered hours; amended duties / workplace adaptations”.

The government hopes that the change, which follows last summer’s extensive government consultation on “Reforming the Medical Statement”, will save the economy £240m over the next ten years by aiding the recovery and return of sick workers and maintaining their skills.