Unfair Dismissal - Don't jump to conclusions
Employee unfairly dismissed for working in second job while on sick leave.
Employee X is signed off work for several weeks on medical grounds and in receipt of contractual sick pay. You then discover that X has been working for another employer while on sick leave. You think obviously X is not too sick to work and so must have made a fraudulent sick pay claim. While such a conclusion may easily spring to mind, the case of Perry v Imperial College Healthcare warns against jumping to conclusions.
In this case, Ms Perry worked as a midwife part-time for two different employers. Her job for employer number one (Imperial) was as a community midwife, which 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 with her job for employer number two (Ealing), which was desk-based and therefore not affected by her knee condition. The Ealing job was carried out outside the hours she would otherwise have been working for Imperial.
On discovering that Ms Perry was still working for Ealing while signed off sick, Imperial carried out a disciplinary procedure and dismissed her for intentionally defrauding Imperial of "a large sum of money", by claiming sick pay while undertaking paid work. It refused to consider a letter from Ms Perry's GP confirming that, while she was unfit for her Imperial duties, she was still fit for her Ealing job which was completely separate in nature and did not put any stress on her knee.
At the internal appeal, the Trust changed tack, relying on a clause in Ms Perry's contract preventing her from working elsewhere during sick leave without the permission of her manager. Imperial claimed that, had she mentioned earlier that she was fit for desk-based work, it could have redeployed her instead of putting her on sick leave. It confirmed her dismissal. An employment tribunal dismissed Ms Perry's unfair dismissal claim, and she appealed.
The Employment Appeal Tribunal (EAT) upheld the appeal and substituted a finding that the dismissal was unfair, but that compensation should be reduced by 30% for contributory fault.
Referring to the HMRC Employer Helpbook for Statutory Sick Pay E14, the EAT pointed out that "it is perfectly in order for an employee with two employments to be claiming sick pay in respect of one employment whilst continuing to work under the other". Provided the contracts are not with the same employer or two associated employers (which these were not), the employee can claim statutory sick pay if incapable of work under one contract, while still being capable of work under the other.
It was not the case here that Ms Perry was being paid twice for the same hours. There was no overlap in the hours she was working for Ealing and the hours for which she was receiving sick pay from Imperial.
The EAT held that the contractual requirement to obtain permission was not designed to provide Imperial with information about redeployment options. Instead it was aimed at addressing the questions over whether (a) such other employment was inconsistent with Ms Perry being unfit for her duties with Imperial; and (b) it would delay her return to work at Imperial.
In the light of the letter from Ms Perry's GP, the EAT held that there had been no reason for Imperial to be concerned about either of these issues. They were simply trying to salvage, after the event, what "had plainly been an initially misconceived decision to dismiss".
The EAT did, however, recognise that her dismissal was partially attributable to her failure to seek permission to carry on her Ealing job, as required by her contract. It therefore held that her compensation should be reduced by 30% for contributory fault.
To Sum Up
- It is clear that an employee with two jobs for two different employers can be on sick leave and receive sick pay from one employer, while continuing to perform their duties for the other employer. This only becomes a problem if the circumstances suggest that the employee is not really incapable of performing the first job, or is carrying on the second job during the hours she would otherwise have worked for the first employer.
- Beware of jumping to conclusions. Proper investigation is always required.