It can be tempting for an employer, when hearing that their
employee who is off on sick leave is working for another employer,
to automatically jump to the conclusion that the employee must
malingering. Whilst this conclusion may prove to be correct, it may
not be and the employee's actions might be capable of legitimate
explanation. It is, therefore, important to fully investigate
the issue, and follow a fair disciplinary procedure, before
reaching such conclusions as has recently been highlighted by the
EAT in the case of Perry v Imperial College Healthcare NHS
Trust.
In this case the employee, a nurse, had two jobs with two
separate employers. She was employed part-time by the
Respondent, Imperial College Healthcare NHS Trust, as a midwife and
part-time by another employer as a family planning nurse. She
developed a knee injury which, due to the nature of her work with
the Respondent meant she was not fit to work for the
Respondent. However, her duties as a family planning nurse
were different and were not affected by her knee injury so she was
able to continued to work for the second employer. When the
Respondent discovered this they dismissed her for gross
misconduct.
The Employment Appeal Tribunal concluded that this dismissal was
unfair in circumstances since the employee was clearly not
malingering and was not working for the second employer at times
when she would have been working for the Respondent. The dismissal
may well have been fair if the employee had been working for an
other employer at times when she would have been working for the
Respondent if she had not been in receipt of sick pay.
Click here for the full transcript of the
case Perry v Imperial College Healthcare NHS Trust.