Employers are dismayed when one of their employees is paid sick pay but they later discover that the employee was working elsewhere.  Employees have been known to argue that working in a different job was “therapeutic” or “helped their rehabilitation”, or the other job did not involve the same type of work so whilst they were unfit to do one job, they were well enough to work in the second job. 

An example of this can be found in the case of Perry v Imperial College Healthcare 2010 where the Employment Appeal Tribunal (EAT) decided that a community midwife with a knee condition, who was signed off from a job which involved cycling and climbing stairs to visit patients, remained fit to continue with her second job because it was a desk based job at a clinic.  In this case the EAT said she did not act dishonestly when she claimed sick pay.

In another recent case the Court of Appeal has had an opportunity to consider a similar set of circumstances.  A doctor was dismissed for misconduct because she was working in private practice whilst on paid leave from her employer.  She was employed as a consultant at Ealing Hospital and she was permitted by her contract to have sessions with private patients.  She suffered from intermittent ill health and was off work between 13 March and 8 June 2009.  The hospital believed that she had continued to see private patients during her sickness absence, despite them, having notified her twice that she should not do so whilst she was off sick.  The hospital commenced disciplinary proceedings, alleging that she had committed a gross misconduct offence that could lead to her dismissal. 

The disciplinary panel agreed that the doctor had worked in private practice whilst certified sick and, because she had received sick pay from Ealing Hospital, this constituted fraud that could be considered gross misconduct.  She was summarily dismissed and, as a result, she brought a claim for unfair dismissal. 

After losing her case in the Employment Tribunal the doctor appealed to the EAT, who partially upheld the appeal, following which she further appealed to the Court of Appeal (CA).  The CA decided in favour of the hospital.  It concluded that Ealing Hospital had a genuine belief that this misconduct had occurred, that it had reasonable grounds for that belief as a result of a full investigation and that the dismissal was reasonable in all the circumstances. 

The CA took the opportunity to confirm the general principle regarding employees working elsewhere when claiming sick pay, saying:

“The lay members of this tribunal would emphasise that in the employment world, claiming sick pay whilst working elsewhere is in general regarded very seriously by employers.  In their experience any substantial case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same.  This is not, however, to say that it is an inevitable conclusion.”

This decision will give comfort to employers who pay sick pay to an employee only to discover they are working elsewhere.  From what the CA said in the Ealing Hospital case, it seems that although the case of Perry v Imperial College Healthcare was decided on its own facts, the general principle is that this type of action by employees may well be grounds for dismissal.

Reggie Lloyd
01206 217347
reggie.lloyd@birkettlong.co.uk