The EAT has held, in Perry v Imperial College Healthcare NHS Trust, that the dismissal of an employee for claiming sick pay whilst working a second job was unfair.  Miss Perry worked for Imperial College NHS Trust (NHS) as a midwife, conducting home visits.  This role required her to be mobile so that she could, for example, climb stairs in high-rise flats to visit patients.  She also worked for Ealing Primary Care Trust (PCT) as a clinic-based family planning nurse.

Due to a knee condition, Miss Perry became unable to perform her role for the NHS Trust.  She went on sick leave, claiming statutory sick pay.  Meanwhile, she continued in her clinic-based job at the PCT, as her knee condition didn't affect this.  When the NHS Trust discovered this, it dismissed her for gross misconduct, on the basis that she claimed sick pay from the NHS Trust, whilst concurrently working for the PCT.  Miss Perry appealed, but the appeal was dismissed, albeit on the basis that she had deceived the NHS Trust by not advising it that, whilst on sick leave, she was still working for the PCT (which she was required to do under her employment contract), and, therefore, the NHS Trust was unaware she was able to do alternative work and was denied the opportunity to redeploy her.

The EAT held that it was acceptable for an employee with two jobs to be claiming statutory sick pay in respect of one job whilst continuing to work in the other, and so the conclusion in this case that it constituted gross misconduct was misconceived.  Importantly, at no point was Miss Perry drawing sick pay from the NHS Trust in respect of hours during which she was working for the PCT.  The EAT also found that the decision of the appeal panel that dismissal was an appropriate sanction for her failure to advise them of her second job was not reasonable.  There was no basis for the suggestion that, as a result, the NHS Trust was unable to consider redeploying her.  The appeal panel were simply trying to salvage what had initially been a misconceived decision to dismiss.  The EAT did however hold that by failing to advise the NHS Trust that she was working in a second job whilst on sick leave, Miss Perry had contributed to her dismissal and her compensation was therefore reduced by 30%.

Impact for employers

  • Employers who discover that an employee is working in another job whilst on sick leave will often conclude that they are guilty of misconduct.  This case serves as a useful reminder that, in such circumstances, the reason why the employee is absent must be considered, and whether or not it is reasonable for them to continue to work in another job taken into account.  In this case, had the employee gone on sick leave from the PCT, she would have been falsely claiming sick pay from them, as she was perfectly fit to carry out this role.
  • This case also highlights that employers who, at appeal stage, discover that the original decision to dismiss was misconceived, should not attempt to “save” the dismissal by upholding the decision to dismiss on wholly different grounds.  The correct approach in these circumstances is to restart the disciplinary procedure with the new allegations and consider these new allegations in an open and fair manner.