An important aspect of an organisation’s absence management programme will be identifying and dealing with instances of malingering and employees ‘pulling sickies’ or exaggerating symptoms or a condition to justify more time off work.
For managers and HR, this means being alert to signs of potential issues, such as being given a fake sick note.
In this guide, we explain what employers should look for in a genuine fit note and pointers on how to spot a fake sick note. We also set out what an employer can expect a standard sick note to include and what steps should be taken to challenge a possible forgery.
What are the sick note rules?
If an employee is genuinely unwell or injured, they will be entitled to take time off work, although they may need to provide a sick note, depending on the length of their absence.
If absent from work for 7 calendar days or less, the employee does not have to provide a sick note, but they can be asked to self-certify on their return to work. This means they must provide a written explanation of their absence, typically by email or by completing a self-certification form. If the employee has been off work sick for more than 7 days in a row, and has taken sick leave, they must provide a sick note.
Now known as a ‘fit note’ or a ‘statement of fitness for work’, the sick note is the document issued by the employee’s GP or hospital doctor to certify the patient’s inability to work by reason of either illness or injury. A similar document can be provided by a physiotherapist, podiatrist or occupational therapist instead, provided the employer agrees. This document can then be used by the employee to claim sick pay if unfit for work and, in cases where the employee is potentially fit for work, ways in which the employer can support their return.
COVID concession from 17 December 2021
The Statutory Sick Pay Regulations 2021 are now in force. The new rules have been implemented by the government to allow workers to self-certify for the first 28 days of sickness absence, and will apply only to absences due to illness that started either before 17 December 2021 and on that date lasted no longer than 7 days, or where the period of sickness absence started on or after 17 December 2021 and lasts until 26 January 2022. The measure has been implemented to alleviate pressure on GPs to issue fit notes during the pandemic and is due to end on 26 January 2022, although some believe this may be extended.
How do sick notes work?
The employee’s sick note will set out the date on which they were clinically assessed, the nature of their condition, when they’re likely to recover or whether they will need to be reassessed to determine their fitness for work. It may also set out ways in which an employee can be supported in their return to work, such as appropriate reasonable adjustments being made by their employer, for example, amended duties, altered hours or workplace adaptations.
When provided with a sick note, this should usually be accepted by the employer at face value. A person can only be given a sick note if their doctor considers their fitness for work is significantly impaired. If considered fit for work, they will not be given a note. This means that if the employee is assessed as unfit for work, they should refrain from work for the stated period of time. The employee does not need to be positively reassessed as fit for work but, equally, they must not be pressured into coming back to work prior to expiry of their sick note.
In cases where an employee is assessed as potentially fit for work, agreement should be reached between the employer and employee as to what adjustments could or should be made to facilitate their return. This could be in line with any suggestions made by the employee’s doctor in the sick note, although the employer may want to ask the employee to undergo a further assessment with an occupational health specialist. If agreement cannot be reached, or the employer is unable to make any suitable adjustments, the employee must be treated as unfit for work.
What to do when you’re given an employee’s sick note
When you’re given a sick note by an employee, follow these five steps:
- Check the fitness for work assessment made by the employee’s doctor: is the employee not fit for work of any kind, or potentially fit for some work, subject to the doctor’s advice about the functional effects of their condition?
- Check how long the employee’s sick note applies for and whether they’re expected to be fit for work once their sick note expires
- If the employee is potentially fit for work, discuss their sick note with them to see if agreement can be reached about any changes to help them return to work
- If the employee is ‘not fit for work’, or if they ‘may be fit for work’ but agreement on any changes cannot be reached, use the sick note as evidence for formal sick pay procedures
- Take a copy of the sick note for HR records, although the employee should keep the original as they may need this to claim benefits or for other purposes.
The sick note can provide employers with invaluable insight into the nature and extent of any genuine illness or injury suffered by an employee, including ways in which they can support an employee’s return to work. However, in cases of long-term sickness absence, or where there is some doubt as to the authenticity of any sick note provided, an employee may need to be referred to an occupational health specialist for an independent assessment.
What should a standard sick note usually include?
The sick note is a template form, with various tick boxes and comment boxes, to be completed by a patient’s GP or other medical practitioner. The sick note should include:
- The date the patient was clinically assessed
- The nature of the patient’s condition affecting their fitness for work
- Whether the patient has been assessed as unfit for work or potentially fit for some work
- What changes can be made to facilitate the patient’s return to work, including amended duties, altered hours, workplace adaptations or a phased return. The doctor may also comment on the functional effects of the patient’s condition in the context of their fitness for work in general, such as stamina, mobility, agility and cognitive abilities
- The anticipated recovery period or when the patient’s fitness for work should be reviewed, either by way of a specific time period or an inclusive date range
- Whether or not the patient will need to be reassessed at the end of this period
- The doctor’s signature, signed in ink, even if the sick note is computer-generated
- The date the sick note was issued, which may not necessarily be the same as the patient assessment date, and the GP’s practice or practitioner’s address.
The doctor’s clinical assessment about whether their patient is fit for work is based on the individual’s fitness for work in general and is not job-specific. The doctor is not expected to have specialist knowledge of different workplaces or occupational health, and does not need to go as far as suggesting possible changes to their patient’s working conditions or job role.
The sick note also doesn’t require the doctor to disclose what information the patient has provided to them, or the manner in which the patient’s health condition has been assessed. A sick note can be issued by a doctor following either a face-to-face or telephone consultation.
How to spot a fake sick note
Fit notes are usually computer-generated and printed out, but they can still occasionally be handwritten. If the sick note is printed, the employer can scan the barcode using a 2D matrix scanner to add this to their sickness records. This will also confirm that the fit note is genuine.
In the case of sick notes completed by hand, it becomes more difficult to spot a fake. Handwritten sick notes are often still be used by hospital doctors and on occasion by GPs. A forged handwritten sick note could be an altered original, for example, where the expected date of recovery has been changed to prolong the period of sick leave, or even an entirely fake document bought online or made at home with editing software.
Forgeries can be convincing, as modern technology allows for accurate replications, but there are still ways to spot a fake sick note, including any inconsistencies, omissions or basic errors. This could include, for example, if the GP’s signature has not been hand-signed or certain sections have been left blank. Whilst there is no strict requirement for GPs to comment on the functional effects of a patient’s condition, they must complete section 6 asking them indicate whether the patient will need to be reviewed when the sick note expires. An unconvincing use of clinical language is also a good indicator of a forgery.
Still, in many cases, bogus sickness absence will not be attempted using a fake sick note, or even an altered original, but rather by using a legitimate sick note provided by the employee’s GP based on erroneous information. Sadly, it’s not uncommon for patient’s to fabricate or exaggerate symptoms of ill health for the purpose of fraudulently obtaining a sick note.
It’s therefore important to compare the information set out in the sick note against the alleged health condition and symptoms reported by the employee. The employee will usually be required to telephone their line manager or HR at regular intervals during any period of sick leave to explain their ongoing absence. They may also be required to participate in a back-to-work interview on their return. If there are any discrepancies between the illness or injury, and the progress of any symptoms, as reported by the employee and set out in the sick note, this may suggest some level of dishonesty about why they have been off work.
Can a fake sick note be challenged?
If an employer suspects an employee has provided them with a fake sick note, the employer is entitled to challenge the authenticity of this note with the employee. However, the way in which this should be handled will depend on the circumstances.
By questioning an employee’s honesty, at the very least this could seriously damage the employer-employee relationship. In some cases, if the allegations prove to be unfounded, the employee may feel forced to resign and claim constructive dismissal for breach of the implied duty of trust and confidence. It is therefore always best to proceed with caution, since jumping to conclusions or making unfounded allegations could have serious repercussions.
However, where there is clear evidence to support any suspicions, it is open to the employer to contact the employee’s GP practice to ask them to comment on whether or not a sick note is genuine. Even though doctors are not permitted to provide any medical information without their patient’s consent, they can check the fit note serial number and confirm if they have issued it. They can also comment on whether a sick note is not as it was when originally signed without breaching their patient’s confidentiality, for example, if the dates have been changed.
What if no sick note is provided?
If an employee is absent from work for more than 7 days without providing a sick note, the employer may be entitled to withhold any contractual sick pay or statutory sick pay (SSP).
The employer should first attempt to make contact with the employee by telephone, in order to establish why no sick note has been provided. If this is not successful, or the employer isn’t satisfied with the employee’s explanation, they should contact the employee in writing, setting out the sickness reporting requirements under any workplace absence policy or as required by law. The employer is entitled to request reasonable information to determine if an employee is entitled to SSP, or to contractual sick pay under any occupational sick pay scheme.
The employee should also be warned that any unauthorised absence from work, as a result of their failure to provide a sick note, could result in disciplinary action.
Need assistance?
DavidsonMorris’ HR consultants support employers with all aspects of workforce management, employee entitlements and employer statutory obligations. Working closely with our team of employment lawyers, we provide comprehensive guidance on fit notes, sickness absence and dealing with the return to work. For help and advice on a specific issue, speak to our experts.
Fake sick note FAQs
How do I verify a doctor's note?
You can verify a doctor’s note by contacting the medical practitioner who has allegedly issued the note and asking them to confirm if this is the case. However, an employee’s doctor cannot disclose any medical information about their patient.
Can an employer verify a sick note?
A GP should not provide medical information about a patient without their express consent. However, a GP can check the sick note serial number and confirm to the employer if they have issued it or not.
Is it illegal to forge a doctor's note UK?
It is illegal to forge a statement of fitness for work, otherwise known as a sick note or fit note. Engaging in this type of dishonest conduct is fraud for which a person can be prosecuted.
Last updated: 19 December 2021
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
