The Employment Appeal Tribunal has delivered a “back to basics” reminder in a decision involving a part-time community midwife who also held an part-time administrative job with another employer. Originally dismissed for fraud because she had claimed sick pay in respect of her midwife job while continuing to work for the other employer, it emerged before the appeal hearing that she had behaved legitimately. The second employment was a desk job and the hours did not overlap at all.
However the claimant had ignored a term of her contract that required her to ask permission if she wanted to work for another employer while on sick leave. Rather than re-thinking the disciplinary process, the employer alleged that she had acted dishonestly in not asking permission. The appeal panel found the new charges proved and confirmed the original decision to dismiss.
The employment tribunal, applying the well-known misconduct case British Homes Stores v Burchell, decided that the employer had a reasonable belief that the employee had acted dishonestly, and dismissed the claim for unfair dismissal. But it had failed to consider whether the dismissal was a reasonable response to this belief. The EAT said that if the tribunal had asked this vital question it would have concluded that dismissal was not a reasonable response and therefore unfair. There had been no loss to the employer and there was medical evidence that she was still unfit for her job as a midwife. However it assessed her contribution to the dismissal at 30%, because if she had told her employer what was going on she would not have been dismissed in the first place.