Working In Other Employment Whilst Claiming Sick Pay

3rd October 2019

Whilst there is some misconception in this regard, 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 the case Perry vs Imperial Healthcare Trust UKEAT/0473/10/JOJ, 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 a later case, the Employment Appeals Tribunal (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.

This is a complex area of the law and you should always take HR advice at the earliest point. If you are unsure how this impacts your school or would like to discuss it further please contact your HR Consultant on 0161 850 4343

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