'Off sick' - but working for somebody else!

How would you react if one of your employees was off sick and receiving sick pay from you, and you found out that they were working for another employer at the same time?  My guess is that you’d feel justified in throwing the book at them.  But you’d do well to think carefully and establish all the facts first, or you might end up losing a Tribunal claim!

An NHS Trust was recently faced with just such a situation.  A part time employee had a knee problem and was unable to fulfil her duties, which included travelling.  She also had a part time job working for another employer, which she was able to carry on doing because her duties there were largely sedentary. 

The Trust jumped to the conclusion that if she was not fit enough to work for them, she should not be working for the other employer either, and dismissed her for fraudulently claiming sick pay.  She appealed and pointed out that her other job was not affected by her knee problem, whereas her job for the Trust was, and she was therefore only claiming what she was entitled to.  The Trust decided to dismiss her anyway, but changed its reasoning, saying that she should have told them she was fit for sedentary work so that they could assign her other duties. 

The Employment Tribunal found that she had been unfairly dismissed.  There was no evidence that she had deliberately hidden her other job from the Trust in an attempt to avoid being redeployed while her knee problem persisted.  It was not up to her to suggest alternative work to the Trust; it was their responsibility to consider that option. Furthermore, changing the reasons for dismissal at the eleventh hour had not helped matters.

There are some useful lessons you can learn from this case. 

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For assistance with sickness, dismissal or any other employee-related issues, contact Mara on 01372 700139 or email mara@mthorneconsulting.co.uk