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Employee fairly dismissed for working as a medium while on sick leave

Posted by TonyBrownEmploymentSolicitor on November 9, 2015

An employment tribunal rejected an employee’s claim that he was unfairly dismissed after he was caught making a public appearance as a medium while on sick leave. At the time of his dismissal, the Claimant had worked for his employer for more than 30 years and had an unblemished disciplinary record. 

In 2014, he submitted a doctor’s note under which he was signed off sick with stress for 2 weeks. Shortly before his sick note was due to expire, he told his employer that he was going to visit his GP and would provide them with an update about a return to work after that visit.

Shortly after that conversation, the employer was given a copy of a leaflet advertising the Claimant’s appearance at a psychic night being hosted at a local pub the following evening.

In light of that information, the Claimant was asked to attend a disciplinary hearing to answer an allegation that he was guilty of gross  misconduct in that he had "conducted events as an advertised psychic/medium" while signed off sick.

At the disciplinary hearing, he Claimant argued that he had agreed to appear at the event at short notice to fill in for other performers.

The manager conducting the disciplinary hearing considered that the Claimant's ability to appear at a psychic event was inconsistent with his statement to his manager the previous day that he needed to go back to his GP and that the Claimant had deliberately misled his manager when he implied that he was not ready to go back to work.

While taking into account the Claimant's previous good record, the disciplining manager concluded that the Claimant's untruthfulness about his sickness absence had undermined the trust his employer could place in him. He classified the Claimant's actions as gross misconduct for which the only appropriate sanction was dismissal.

The Claimant brought a claim in the ET for unfair dismissal.

His arguments included that the employer had acted unreasonably in not obtaining occupational health advice regarding his unfitness to work at the date of the psychic event.

Dismissing the claim, the ET said that the employer had compelling reasons to be suspicious of the Claimant's account of events. He had told his manager that he was not ready to go back to work, but had gone to the psychic event the next day without informing his employer. The tribunal decided that the employer was entitled to take the view that the Claimant’s explanation that his attendance at the event was arranged at short notice to be "incredible".

The tribunal also held that the employer had taken a reasonable stance in not getting occupational health advice. Occupational health departments are able to provide a current opinion as to an employee's capacity to work and a forecast of what adjustments might be needed. They should not be expected as part of a disciplinary procedure to assess whether or not an employee was telling the truth about previous sickness absence.

Comment

Employers are entitled to take extremely seriously allegations that an employee has been working while signed off as unfit for work.

While arguably an employer loses nothing if an employee uses his leisure time to do other work, employers often have a legitimate aim in preventing sick employees for doing other work if it could hinder the employee’s prospects of a speedy recovery or the basis on which sick pay is paid is that the employee is unable to earn.

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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