Employee unfairly dismissed over second job whilst on sick

The EAT recently found that an employee sacked for working a second job whilst on sick leave was unfairly dismissed.

Ms Perry worked as a midwife part-time for two different employers. Her job for Imperial College Healthcare involved cycling to patients' homes and often climbing stairs in high-rise council flats. Due to a knee condition, she was signed off work and received sick pay.

However, she carried on a desk-based job with her other employer (Ealing). The Ealing job was carried out outside the hours she would otherwise have been working for Imperial.

When they discovered that Ms Perry was still working for Ealing while signed off sick, Imperial dismissed her, following a disciplinary, for intentionally defrauding them of "a large sum of money" by claiming sick pay while undertaking paid work.

Ms Perry appealed but was unsuccessful.  The Trust rejected the appeal but in doing so slightly altered its reasoning for the dismissal.  It argued that a clause in Ms Perry's employment contract required her to obtain prior permission before working elsewhere during sick leave and that she had failed to do so.

An employment tribunal dismissed Ms Perry's unfair dismissal claim and she appealed.

The EAT held that the decision to dismiss was incorrect. It noted that there is nothing to stop an employee from being paid sick pay for one job whilst being medically fit to perform another job for a different employer, provided it is outside of their normal working hours with their other employer.  

The EAT also found that the Trust should not have attempted to change the reason for the dismissal during the appeal process but that a fresh procedure should have been started.

The EAT applied a 30% reduction to Ms Perry’s compensation due to contributory fault.

A spokesperson for the employment team at Laytons Solicitors commented: “This case raises a number of interesting points and demonstrates the importance of clearly articulating the reason for a proposed dismissal and properly considering all surrounding circumstances in the decision-making process.  

“It is also worth noting that had the Trust simply followed an appropriate sickness absence procedure, it would have promptly learnt that Ms Perry was able to perform desk-based duties and could have simply redeployed her temporarily in a position that she was able to perform.”