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Sick Leave: what to do if you suspect the employee has a second job?
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Following the European Court of Human Rights' (ECHR) decision in the case of Redfearn v United Kingdom the Government has announced its intention to amend the Enterprise and Regulatory Reform Bill to do away with the two-year qualifying period for unfair dismissal where the alleged reason for dismissal is political opinion or affiliation.
From time to time, every employment lawyer gets a call from a client who thinks that an employee on long term sick leave is working for a second employer. “We think he’s defrauding us, can we dismiss him?” they ask.
The EAT recently considered just such a case and it usefully illustrates a number of points (Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10). P worked part-time for two different NHS employers, Imperial and Ealing. Her job for Imperial was as a community midwife, and involved cycling to patients' homes and sometimes climbing stairs in high-rise buildings. Due to a knee condition, she was signed off work and received sick pay including statutory sick pay. However, she carried on with her Ealing job, which was desk-based and therefore not affected by her knee condition. She had been engaged in both roles before her illness and the Ealing job was not carried out during 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 "a large sum of money", by claiming sick pay whilst 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.
In finding her dismissal unfair, the EAT pointed out that Imperial's original decision to dismiss for fraud had been legally and factually wrong. There is nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying on working for another job for which she is still fit. P was not working for Ealing when she would otherwise have been working for Imperial. Dismissal was outside the band of reasonable responses and was therefore unfair.
The case clearly illustrates the dangers of having a knee-jerk reaction to the discovery that an employee has been working elsewhere whilst on sick-leave. Thorough investigation is always necessary and medical evidence often advisable. Similar principles apply to employees who go on holiday or are caught socialising whilst on sick leave; it is not always safe to assume that this means that they are not genuinely unfit to perform work.
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