Sickness pay and a second job

Employers may be disgruntled to find an employee who is on sick leave and is claiming sick pay continues to work in a second job.  But an employer must be cautious before dismissing an employee who it thinks might be malingering, as the following case illustrates.

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

The NHS Trust at Imperial carried out a disciplinary procedure and dismissed her.  They asserted that Miss Perry had intentionally defrauded Imperial out of a large sum of money by claiming sick pay whilst undertaking paid work.  Imperial refused to consider a letter from her GP which confirmed that although she was unfit for her Imperial duties she was fit to carry out the duties of 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 Miss Perry’s contract which said that she was required to seek permission of a manager to work elsewhere during sick leave.

The Employment Appeal Tribunal (EAT) clearly found that 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, yet carrying out work for another employer which the employee is fit to undertake.  The EAT referred to HMRC Employer Helpbook for SSP, 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.  The handbook also stated that an employee can claim SSP if incapable of undertaking work under one contract but capable of carrying out work under another.

The tribunal stressed that in this case, the employee was not being paid twice for the same hours as there was no overlap in the hours whatsoever.  However, the EAT did apply a 30% dismissal contribution to Miss Perry because they recognised that her dismissal was partially attributable to her failure to seek permission to carry on with her part time job as required by her contract.

Employers must be cautious if an employee claims that they are unfit to attend work but carry on working with another employer outside their normal contractual hours.  The employee may be perfectly entitled to claim sick pay or SSP if they are not capable of performing their job but are carrying out a second job outside of the normal working hours of the first.

It would have been wise for Imperial to have interviewed Miss Perry when they were informed of her sickness, to ask 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 two.  The nature of the work 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 of their duties or alternative work.