Q: Can an employee work for another employer whilst on sick leave? A: Yes…..but….

In the recent case of Perry v Imperial College Healthcare NHS Trust, the EAT held that a dismissal of an employee for working in a second job whilst on sick leave from their first job was unfair.
The facts in summary are that Ms Perry had two part-time jobs. She worked 19 hours per week as a community midwife for Imperial College, and six hours per week as a family planning nurse for Ealing Primary Care Trust. In 2007 she became unable to perform her duties as a midwife because of a chronic knee problem and was unable to do the necessary travelling involved with the job. She was signed off sick by Imperial and started to receive SSP. However, unknown to Imperial she continued to work for the PCT, as this role was largely sedentary and the clinic was less than 100 yards from her home.
In 2008, on discovering that Ms Perry was working for the PCT during sick leave, Imperial summarily dismissed her for gross misconduct on grounds that Ms Perry had fraudulently claimed sick pay due to the fact that she was fit to work for the PCT. Ms Perry brought a claim against Imperial for unfair dismissal.
On appeal the EAT’s view was that the dismissal was unfair because there was no basis for suggesting that by failing to disclose her continued work for the PCT Ms Perry had been seeking to prevent Imperial from redeploying her or that her claim for sick pay had been fraudulent in any way, as she was clearly medically unfit to perform her job with Imperial, but was still able to perform her job with the PCT. The EAT did, however, acknowledge that Ms Perry had contributed to her dismissal by failing to obtain permission from Imperial to carry on with her second job during her sickness and said that any award of compensation should be reduced by 30% for contributory conduct as a result.
Employers should therefore take note that it is not unlawful in itself for an employee to claim SSP in one job while continuing to work in another. It is only where an employee has more than one contract with the same or an associated employer that they must be incapable of work under all of the contracts before they can claim SSP. That Ms Perry was fit to perform one job did not mean that she was fit to carry out the other.
An interesting case which demonstrates that employers should therefore be careful to determine the facts before dismissing an employee in similar circumstances.

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