In the case of Perry v Imperial College Healthcare the EAT has recently held that an employee was unfairly dismissed for working in a second job while on sick leave.
Ms Perry (P) worked part-time for 2 different employers – Imperial and Ealing. Her job at Imperial was as a community midwife. This involved her cycling and climbing lots of stairs. She was signed off sick as a result of a knee condition. During this time she received sick pay including SSP. Her work for Ealing was desk-based and was undertaken in the evening (i.e. not during her normal working hours for Imperial). Imperial discovered that while signed off sick P was working for Ealing. P was dismissed for intentionally defrauding Imperial of money by claiming sick pay while doing paid work for another employer.
P appealed. Her dismissal was upheld but Imperial took a different approach. They relied upon a clause in P’s contract preventing her from working in a second job during sick leave without her manager’s permission. P thought this only applied to people taking on a second job during sick leave rather than those who already held two jobs. Imperial concluded that she had acted in bad faith by not asking permission and that she had intended to deceive them. It also found that she should have told them she was able to do desk work so they could have redeployed her.
The Employment Tribunal held that P’s dismissal was fair. The EAT, however, held that her dismissal was not reasonable and was therefore unfair. It did, however, reduce her compensation by 30% for contributory fault on the basis that her dismissal was to a certain extent linked to her failure to obtain permission to continue with her second job.
In reaching its conclusion the EAT held that an employee can claim sick pay in one job while working in another on condition that the contracts of employment are not with the same or an associated employer. In addition, the requirement to obtain permission for a second job during sick leave did apply to P (despite her honest belief that it didn’t). Consequently Imperial had good reason to doubt her good faith. Even so, Imperial should have taken heed of the letter that P had submitted from her GP indicating that she was fit for the Ealing job as it did not affect her knee. The rationale behind obtaining permission was to ensure that her second job would not delay her return to work at Imperial and to ensure that it was not inconsistent with her being unfit for her job at Imperial. It was not to give Imperial information as to redeployment options. The EAT held that by relying on the clause in the contract, Imperial were trying to rescue a “misconceived decision to dismiss”.
Practical Tips
If during a disciplinary procedure, you conclude that the original reason for dismissal is no longer valid, you should recommence the disciplinary procedure with an open mind.
In the current economic climate it is not unusual for employees to have more than one job. Where employees have 2 jobs for 2 different employers, bear in mind that it is possible for them to be fit for one role and unfit for the other. You may wish to expressly deal with this possibility in the contract of employment by setting out your expectations.
Where employees have a second job, you should keep a record of the number of hours they work in their second job and consider asking them to opt out of the 48 hour average working week provisions of the Working Time Regulations.
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