UK Employment Law Coffee Break: Fire and re-hire, fit notes reform, and occupational health

Fire and re-hire: Draft order providing for uplift or reduction in 'protective award'

We have previously reported on the new statutory Code of Practice on Dismissal and Re-engagement. This is expected to come into force in July 2024. While a breach of the code will not itself result in a legal claim, where an employer or employee is found to have unreasonably failed to comply with it, a tribunal will have a power to increase or reduce compensation, as the case may be, in specified claims, by up to 25%.

As well as a potential increase (or decrease) in any unfair dismissal award arising on dismissal and re-engagement, a draft order has now been published which provides that where there is a failure to follow collective consultation requirements under the Trade Union and Labour Relations (Consolidation) Act 1992, a tribunal may similarly potentially increase (or decrease) any protective award made. Without any increase or decrease, a tribunal can make a protective award of up to 90 days of gross actual pay per employee. The order is expected to come into force on 18 July.

Please see our earlier Coffee Break on the draft code. Employers contemplating fire and rehire should ensure that the code is reflected in their proposed strategy. This is an area where employers should continue to watch out for further developments; with a general election this year, the use of "fire and re-hire" remains a live issue as the Labour Party has indicated that it would ban the practice.

Reform of fit notes

The Department for Work and Pensions and Department of Health and Social Care have issued a call for evidence to explore reforming the fit note process, which closes on 8 July this year. There will be full consultation on specific policy proposals later this year.

The fit note was introduced in 2010 to replace the "sick note". It was intended to ensure patients received advice about the benefits of returning to work, and that employers had the information they needed to make changes to facilitate an earlier return to work.

However, following the Covid-19 pandemic, economic inactivity due to long-term sickness has risen by nearly half a million and it is the main cause of economic inactivity among the working age population.

The call for evidence states "across England in primary care 93.8% of fit notes were issued as ‘not fit for work’. This means that over 10 million fit notes each year are issued where the patient is simply signed off, resulting in a missed opportunity to help people get the appropriate support they may need to remain in work. All too often, people are written off work without an objective assessment of what they could do with the right support, rather than what they cannot."

The government's aim is to "facilitate timely patient access to specialised work and health conversations and support" and the call for evidence seeks views and experiences of the current system and the challenges and enhancements that could better support people to start or stay in work, especially for those with long-term health conditions requiring more intensive support.

Specific questions are posed to health care professionals, but those for individuals and employers include:

Individual's/carer's needs

• How effective do you feel the current fit note process is at supporting individuals' or patients' work and health needs?
• What works well with the current fit note process to support individuals’ or patients’ work and health needs?
• What can be done to improve the fit note process to meet individuals’ or patients’ work and health needs?
• What, if any, additional information would be useful in "‘may be fit for work" fit notes to support individuals or patients in returning to work from sickness absence?
• Have you ever purchased a "work sickness certificate" from an online private company advertising themselves as a fit note or sick note service?
• What motivated you to use this online service to purchase a "work sickness certificate"?
• What was the experience of purchasing a "work sickness certificate" from an online company like?
• If the "work sickness certificate" provided advice to support return to work, how useful was this advice?
• Was the "work sickness certificate" accepted by your employer?

Employers’ experience

• How effective do you feel the current fit note process is at meeting employer needs?
• What works well with the current fit note process for employers? 
• What do employers feel could be improved with the fit note process so that it meets their needs?
• What, if any, additional information might be helpful for employers to have within may be fit for work fit notes to support employees to successfully return to work from sickness absence?
• What do employers need to feel confident in having in-depth work and health conversations with employees?
• Have you ever received a "work sickness certificate" or other form of fit or sick note from an employee issued by an online company advertising themselves as a fit or sick note service?
• What was the experience of receiving a "work sickness certificate" or other form of fit or sick note from an employee issued by an online private company like?
• If the "work sickness certificate" provided advice to support employee’s return to work, how useful was this advice?

In September 2023, we commented on sickness absence being at a ten-year high, reaching levels greater than those during the initial outbreak of the Covid-19 pandemic: with stress continuing to be one of the main causes of both short and long-term sickness absence. Given the negative impact on productivity, workflow, employee morale, costs and employee turnover caused by sickness absence, the hope of the review of the fit note system is that it can provide a more successful mechanism for employers helping employees back to work and to remain in work during or after periods of physical and mental ill-health.

While we await the outcome of the call for evidence and details of any consequent reforms, employers can take several proactive measures to reduce sickness absence in the workplace. Promoting employee wellbeing, through initiatives like wellness programmes, accessible occupational health support and flexible working arrangements, can help prevent absences. Implementing effective absence management policies, including clear reporting procedures, return-to-work interviews and monitoring systems, can help identify and address absenteeism issues promptly.

Occupational health in the workplace

As part of its plans to tackle in-work sickness, earlier this year the government launched a new Occupational Health Taskforce "to improve employer awareness of the benefits of Occupational Health in the workplace".

The taskforce will produce a voluntary occupational health framework for businesses which will include setting out minimum levels of occupational health needed to stop sickness-related job losses, and help businesses better support those returning to work after a period of ill-health.

It will aim to increase access and uptake of occupational health by increasing information and visibility for employers on occupational health and empowering them to play an active role in improving employee health.

Emphasising its commitment in this area, the government announced, on 14 April, that £1.5 million will be invested into five projects that will share the funding in a bid to improve occupational health services.

At the heart of these projects is innovation, with the funding being used to increase the use of artificial intelligence and new technology. This will allow the expansion of remote services, digital health hubs and long covid support which overall will improve occupational health services.

This latest announcement outlines that the voluntary framework the taskforce is currently developing is expected to be published this summer. When published, businesses should review the framework to decide if it is something they wish to implement alongside the measures they already have in place in relation to occupational health.

Please speak to Mary Lawrence, partner in our health and safety team, for how we can support you in this area.