Wednesday, Jul 20, 2022

Changes to Fit Notes & Data Subject Requests

Changes to fit notes

Following the introduction of digital certifying of fit notes in April, the UK government has now extended the list of healthcare professionals able to issue fit notes to simplify the process and ease pressure on GPs. The new legislation allows a wider range of healthcare professionals – nurses, occupational therapists, pharmacists and physiotherapists – to certify fit notes, as opposed to just GPs being able to do so.

If a worker has been off with illness for more than seven days, a fit note is issued to provide evidence to the employer about the absence and any relevant advice on how to support the worker to remain in or return to work.

The latest legislation change, announced in June, came into effect across England, Scotland, and Wales on 1 July 2022 and it aims to help ease pressure on GPs, simplify the process, enable patients to see the most relevant healthcare professional, and allow for better conversations about work and health.

How might the update affect absence planning and presenteeism?

Commenting on the fit note policy change, which is the most significant since fit notes were introduced in 2010, director of practice and innovation at The Royal College of Occupational Therapists, Karin Orman, said that this change could “open new opportunities for occupational therapists”.

“Workers and employers are crying out for more help to support people to stay in work, where they are able to do so. These new changes mean occupational therapists are directly able to provide that advice,” Orman said. As the policy update is also aiming to cut bureaucracy for employers and the NHS, Gill McAteer, director of employment law at Citation, said that the new rules could make it easier for employees to obtain a fit note. 

“This means employees could be back in work much quicker due to less waiting around. Employers will also get a quicker response on how long the member of staff is likely to be off, meaning more time to plan for the absence,” she said. While pointing out that the changes are also welcome for employees who may not be comfortable going to other healthcare practitioners about a particular issue, McAteer highlighted that health professionals other than GPs “are often in a better position to comment on an individual’s state of health and provide informed advice on any measures which may assist in getting the employee back into work”.  McAteer added that all of this “will help alleviate the burden of long-term sickness absence within the business, especially as businesses, particularly SMEs, are trying to get back to pre-pandemic levels of staffing.”

Considerations for employers

While McAteer said that concerns had been raised among employers that the update would result in the inappropriate issue of fit notes to employees, she said “it seems likely that more employers may want to obtain their own medical advice on their employees’ health.” However, she cautioned that this “would need the employee’s consent and would come at a cost”. Addressing fears of possible misuse of fit notes by workers, Arshad advised that managers and HR “act on a ‘trust first’ basis and only question when having really strong grounds to do so, for example [where] someone states they have broken their leg, but you see them playing football,” he said. As well as this, Arshad cautioned that the policy update “will put employers’ empathy and trust to the test” as many will question whether “a note from a pharmacist has less value than a GP’s.” 

Regarding the specialist knowledge that other health professionals can bring to the table, Katie Hodson, partner and head of employment at SAS Daniels, said that following the changes, employers may see more fit notes containing “suggestions for adjustments or support for the employer to consider in assisting with any return to work.” She added that this should not be viewed as concerning since “physiotherapists, nurses, and occupational health would be dealing with a specific issue with the employee and potentially would have more specialist knowledge.” “This can therefore be considered by the employer at an early stage of the employee’s absence, which could result in more employees returning to the workplace at an earlier date,” Hodson added.

Data Subject Access Requests

Responding to any data subject access request (DSAR) can be tricky, especially when the DSAR comes from a current or former employee. The sheer volume of personal data that organisations collect and process in respect of their employees can make identifying, reviewing, and disclosing information responsive to a DSAR a mammoth task. However, there are things you can do to make the process easier and more efficient.

The employee has requested copies of all of their personal data – where do we start?

If you process a large amount of information about the employee and it is not clear what information they are requesting, you can ask the employee to clarify their DSAR – for example, you can ask them to identify particular issues or incidents that they are concerned about and to specify a timeframe or provide additional context. 

This can ‘stop the clock’ running on the timeframe for responding to the DSAR. The clock starts again when the employee responds. If they don’t respond after a ‘reasonable’ period (e.g. one month), you can consider closing the request. Caution should be exercised; the regulator may not agree that clarification was needed. It might be better to simply run reasonable searches for relevant personal information based on what you think the employee is looking for.

Where do we look? 

Start with your HR systems – this should be straightforward. Then you need to think about where else relevant information might be. 

If, for example, you’re dealing with a recently dismissed employee, then they are likely interested in discussions among those people involved in the dismissal decision-making process. This could include the employee’s line manager and other colleagues (e.g., HR). Consider what channels these individuals use to communicate and whether it is reasonable, taking into account obligations to those employees too, to search their email folders and/or other channels.  

There are thousands of documents containing this employee’s data – do we have to review every single one?

No. Where you have an unmanageable volume of documents containing the employee’s data, you can apply targeted search terms to find the information most relevant to the DSAR. 

Your IT team may be able to help with these searches or, alternatively, there are multiple providers of review platforms well suited to quickly and accurately running searches and then enabling easy review of the data. Using a third-party review platform means incurring costs, but the timesaving can be substantial. 

Some of these documents contain sensitive information about others – do we have to disclose them?

The UK GDPR outlines various exemptions to the right of access. Where one applies, any document provided to the requestor should be redacted so exempt information is not visible. In some cases, this means that documents should be withheld in their entirety. Commonly applicable exemptions in the context of employee DSARs include privilege (e.g., emails containing legal advice about a dismissal), management forecasting (e.g., where the employer is contemplating a restructuring), and third-party privacy rights. 

We can’t get this all done in a month. What are our options?

The time frame for responding to a DSAR may be extended by up to two months if the DSAR is complex or one of multiple requests made by the employee. You must notify the employee and explain the reasons for the extension. The complexity of a DSAR will depend on a number of factors and employers should not default to an extension, unless it can be justified.

Alison Melville Greig Melville HR
Alison Melville Greig Melville HR
Human Resources

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