Sick Leave - Second Job - Unfair Dismissal

Employers may be disgruntled to find an employee who is on sick leave and is claiming sick pay from them continues to work in a second job. The following case illustrates that an employer must be cautious before dismissing an employee who he thinks might be malingering and claiming sick pay.

This employee worked for Imperial College Healthcare NHS Trust as a Community Midwife which involved cycling to patients’ homes and climbing stairs and high rise buildings. She had a knee condition. She was signed off sick and received sick pay including Statutory Sick Pay. She also worked in a second job which was desk based. This job did not affect her knee condition and she was only engaged on Monday evenings not during her normal working hours for Imperial.

In typical NHS Trust fashion Imperial carried out a disciplinary and dismissed her. They dismissed her because she had intentionally defrauded Imperial of a large sum of money by claiming sick pay whilst undertaking paid work. Imperial refused to consider a letter from Miss Perry’s GP which confirmed that she was unfit for her Imperial duties but fit to do her other job which was completely separate in nature and did not put any stress on her knee.

On appeal the NHS Trust changed its reasons for the decision relying on a clause in the contract that she was required to seek permission of a manager to work elsewhere during sick leave.

The Employment Appeal Tribunal clearly found the original decision to dismiss for fraud had been legally and factually incorrect. It said that there is nothing to stop an employee claiming sick pay whilst medically unfit for one job and carrying out work for another employer which the employee is fit to undertake. The Employment Appeal Tribunal referred to HMRC Employer Helpbook for Statutory Sick Pay which indicated that there is nothing wrong with an employee claiming sick pay provided the contracts are not with the same employer or associated employers and it acknowledged that an employee can claim SSP if incapable of undertaking work under one contract but capable of carrying out work under another.

They stress that it was not the case here that the employee was being paid twice for the same hours; there was no overlap in the hours whatsoever. The EAT however did apply at 30% contribution to the dismissal to the employee because they recognised that her dismissal was partially attributable to her failure to seek permission to carry on at the Ealing job as required by her contract.

Therefore employers must be cautious if an employee claims that they are unfit to attend work but carries on working with another employer outside their normal contractual hours. There may not be any problem with the employee claiming sick pay or Statutory Sick Pay if the employee is not really capable of performing the first job or is carrying on the second job during normal working hours of the first job.

Although the EAT applied a 30% contribution to her dismissal it would have been wise for Imperial when they received the employee’s sick note to have interviewed her and asked her whether or not she could have carried out a desk based job at Imperial so that they could consider redeploying her. It is somewhat strange that she wasn’t referred to Occupational Health in that regard.

So the bottom line is that employers should not jump to the conclusion that an employee is committing fraud if they are off sick from job one but carrying out work at job number two. The nature of the work will have to be taken into consideration and the hours that the employee is working will have to be taken into consideration.  It is also wise for employers to ascertain the nature of the illness and assess whether or not the employee could carry out some work.