Sick Pay whilst working in additional employment

The Employment Appeal Tribunal (EAT) has confirmed that, where the employee’s contract does not prevent this, the employee is permitted to take sick leave and claim statutory sick pay for a job which they have been declared medically unfit to carry out, while working in a different job which they are medically able to fulfil their duties in. 

In that case, the employee was employed part-time as a midwife for the NHS. Her contract of employment prohibited her from working elsewhere without her employer’s consent.  She was also employed by another NHS trust on a part-time basis carrying out a desk-based job. 

When her chronic knee condition prevented her from working as a midwife, she continued working in her secondary part-time employment in her sedentary role, which was not affected by her ill-health condition.   When her employer found out she was working elsewhere despite being signed off as sick, it proceeded to dismiss her on the basis that she had defrauded her employer of a “large sum of money” due to claiming sick pay whilst fit to work in her other employment. 

The EAT held that her dismissal was unfair as there was nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying out work for another job that they are fit to do.  However, the EAT did find that the employee in that case had committed an act of misconduct by failing to obtain her employer’s consent to take on additional employment, in breach of her contract of employment.  For this reason, it decided that the damages awarded to the employee for unfair dismissal should be reduced by 30%, as a result of her contributory fault. 

In contrast in another case, the EAT found that the employer was entitled to dismiss an employee who carried out private work of the same nature as the work they did for their employer during sick leave whilst in receipt of full contractual sick pay, where the employer’s policy prohibited this and the employee was made aware that doing so may amount to gross misconduct.

Where the employer has evidence that proves the employee is working in a like-for-like role while claiming sick pay from them, this may indicate there is a disciplinary case for the employee to answer. This is because a dishonest claim for sick pay will constitute gross misconduct and amount to a breach of trust and confidence, which usually gives the employer the right to summarily dismiss their employee, subject to following a fair dismissal process and the consideration of any relevant mitigating factors. 

For further information please contact EC HR.