In the case of Perry v Imperial College Healthcare, an employee was dismissed from her part time job for continuing to work in a second job while on sick leave.
Second Job While On Sick Leave
Perry v Imperial College Healthcare – Case Outline
Due to a knee injury, Ms Perry was signed off sick from her job as a community midwife for Imperial College Healthcare NHS, as it required her to be physically active.
She had a second part-time job with a different employer, Ealing Primary Care Trust, which was purely desk based and which she could therefore continue to do. The hours of the two jobs did not overlap.
When Imperial found out about the second job, they claimed that Ms Perry was fraudulently claiming sick pay, and that she had a contractual obligation to ask their permission to work. They said that they could have assigned her desk-based work if she had told them sooner, and that she had deliberately deceived them. Ms Perry said she was not aware that this applied to her situation.
Ms Perry’s doctor confirmed that while she was medically unfit for her midwife role, she was still fit for her separate job at Ealing, which was not affected by her knee condition. However, Imperial dismissed her from her job.
Appeal Tribunal
Ms Perry took an unfair dismissal case to an employment tribunal, but the tribunal dismissed her claim. However, she appealed and the Employment Appeal Tribunal (EAT) found that the dismissal was unfair, but reduced her compensation by 30% for contributory fault.
The EAT found that there was no reason an employee could not claim sick pay and continue to work a second job, if they were still medically fit for it, as long as the contracts were not with the same employer. As there was no overlap between the hours of the two jobs, Ms Perry was not being paid twice.
The EAT held that Ms Perry did have a contractual obligation to get permission to work another job during sick leave, but that this was only to check that it did not entail the same duties as her job at Imperial, and would not delay her return to work, not to discuss alternative desk-based employment options. The evidence from Ms Perry’s doctor was enough to allay both these concerns, and Imperial was just trying to justify its unfair dismissal. The EAT found that Ms Perry had been unfairly dismissed.
Comment – Lessons for Employers
This case offers two lessons for employers. In regard to handling misconduct, if during a dismissal appeal employers realise that their decision was incorrect, they should not try to create reasons to justify the dismissal but should ideally start the procedure again with a fresh start.
In regard to handling sickness claims, this case shows that employees can work a second job while on sick leave, as long as there is no overlap in hours and they are genuinely unable to perform the job for which they are claiming sick pay.
Imperial’s claim that Ms Perry should have let them know she was capable of desk based work shows that its absence policy was also flawed, as it was arguably their responsibility to ask Ms Perry about her condition and determine if alternative duties were available.
In regard to Ms Perry’s contractual obligation to tell Imperial about her second job, this raises an interesting issue as if Imperial had refused permission, she would have been in an impossible situation. As she was still medically fit for her second job, if she had stopped work she would have been in breach of her contract, and would have been committing fraud if she had tried to claim sick pay from Ealing. Also if she had continued to work for Ealing if Imperial had refused permission, she could have been subject to a disciplinary or lost her sick pay.
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