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Drawing sick pay while working in second job

Posted by TonyBrownEmploymentSolicitor on January 13, 2015

Is an employee entitled to draw sick pay from his employer while working in a second job?
Very rarely, according to the following decision of the Court of Appeal.

In that case, the Claimant was employed by a hospital as a consultant. She also had a second job seeing private patients one day a week and the hospital was aware of this arrangement. The Claimant began a period of paid sick leave from the hospital. She submitted a series of medical certificates stating that she was unfit for work. But during the period while she was certified as unfit for work she continued to see her private patients. There was nothing in her contract of employment with the hospital prohibiting her from undertaking private practice work while on sick leave, but the hospital’s Medical Director had written to her, and also told her orally, that she should not carry out private practice work while on sick leave and that engaging in such work "could be construed as fraud". Sick_Pay.jpg

The Claimant did not discuss her plan to carry out her private patient work with either her line manager or with the hospital’s occupational health representatives. When the hospital became aware that the Claimant was continuing with her private work during her sick leave it instituted disciplinary proceedings. The letter convening the disciplinary hearing was headed "Allegation into the undertaking of private practice during the period when certified as medically unfit" and contained the sentence "I must advise you that the allegation is potentially one of gross misconduct and if substantiated could lead to dismissal."

The Disciplinary Panel concluded that the Claimant had committed gross misconduct and dismissed her. Their decision was recorded in a letter which included the following:"The Panel felt that this allegation constituted fraud which could be considered as gross misconduct….”
An ET rejected the Claimant’s complaint of unfair dismissal. The Claimant obtained leave to appeal to the Court of Appeal. The grounds of appeal emphasised the sentence in the dismissal letter saying that "The Panel felt that this allegation constituted fraud which could be considered gross misconduct." The basis of the Claimant’s appeal was that the ET did not address the reason for dismissal as one of fraud.

The Court of Appeal gave short shrift to the argument. It stated that the reason for the Claimant’s dismissal was that she had done private work while on sick leave. The ET was justified in finding that dismissal for that reason was fair notwithstanding the use of the word 'fraud' in the dismissal letter. That was a label for the actual conduct alleged and found. Whether or not this was a good label (the Court warned against using an emotive word such as fraud or dishonesty as a label rather than giving a description of the conduct leading to disciplinary action) the ET was rightly concerned with the substance of the misconduct.
Comment
The Court of Appeal endorsed the following observation of the EAT about employees who try to justify working in a second role while continuing to draw sick pay:
"The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say that it is an inevitable conclusion”.

The Court said this represented the general principle in future cases. The Claimant argued unsuccessfully that the Court should follow a ruling in an earlier decision of the EAT in 2011. In that case, the claimant, a midwife, had two jobs, one at a clinic within 100 yards of her home and the other as a community midwife going to patients' homes, usually by bicycle. She developed a painful knee condition which stopped her from travelling to patients' homes but did not stop her working at the clinic 100 yards from her home. The EAT decided that the Claimant was not dishonest in drawing sick pay from her job as a community midwife while continuing to work at the clinic and a tribunal had been wrong to reject the claim for unfair dismissal.

In view of comments made by the Court of Appeal about that earlier decision, it is unlikely to be regarded as good law in the future.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk
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