Case Study
This case is first level (i.e. Employment Tribunal) only, but an interesting tale about an employee who was signed off sick and unable to work as a postman…but was working as a taxi driver. His employer found out and dismissed him.
This is a helpful reminder of the principles set out in a similar case from over a decade ago (Perry v Imperial College) in which the Employment Appeal Tribunal had made similar findings. On first glance, one might think that being off sick precludes someone from working elsewhere, but the facts of the case are worth investigating to understand why this constituted unfair dismissal.
Mr Weston worked for Royal Mail as a postal delivery worker from 2007 until 2023, when he was dismissed.
His role involved walking long distances and carrying bags of mail. He sustained a hip injury whilst at work and went on sick leave. During this time, he claimed sick pay. His managers were aware that he undertook taxi driving work outside of his normal working hours. There was nothing in his contract that prevented this, and Royal Mail had been aware.
There was a brief return to work on reduced duties, but this caused a flare-up of the hip problem and, following an occupational health report, he again went off sick. A later sick note gave the reasons for absence as hip pain and stress. During this time, it came to Royal Mail’s attention that Mr Weston had returned to taxi driving. He was receiving half pay at the time. It was later found in evidence that he had made attempts to contact work but was unsuccessful.
A different manager then saw Mr Weston driving a taxi and took a photo. That same manager was appointed to investigate. The investigation led to dismissal for dishonesty and being absent without cause. Mr Weston’s appeal against dismissal was unsuccessful, and he brought a claim before the Glasgow ET.
Case Study
The ET held that his dismissal was unfair. Importantly, it found that the employer had not carried out a reasonable investigation due to the manager who took the photo also being appointed to undertake the investigation.
Given that the manager made allegations about what happened, this made his involvement as an investigator (as well as witness) was flawed.
Another key finding was that the suggestion Mr Weston had been dishonest relied on the assumption that he was unfit for any work, and not just unfit for his contracted duties with Royal Mail. No real thought was given to what work he was fit for, and whether the taxi role was different (i.e. sedentary as opposed to walking 10 miles). This should have been explored further through reference to an occupational health report.
There was some balance to this decision in that Mr Weston’s compensation was reduced by 50% to reflect his own contributory conduct. The final award was around £3,000, and whilst this is not the costliest of mistakes, remember that the employer will have incurred significant legal fees (and spent a lot of management time) in dealing with these errors.
In a similar case from 2011 dealing with employees off sick working second jobs, the Employment Appeal Tribunal (the “EAT”) also ruled that an employer’s dismissal of an employee for working in a second job while on sick leave from the first was unfair.
Ms Perry held two part-time jobs. She worked 19 hours per week as a community midwife for Imperial College Healthcare NHS Trust, which involved her visiting patients in their own homes, and six hours per week as a family planning nurse for Ealing Primary Care Trust. In December 2007, Ms Perry became unable to perform her duties as a midwife because a chronic knee problem meant that she was unable to do the necessary travelling. She was signed off sick by Imperial and started to receive Statutory Sick Pay. However, unknown to Imperial, she continued to work for Ealing, as this role was largely sedentary, and the clinic was less than 100 yards from her home. Towards the end of 2008, Imperial discovered that Ms Perry had been working for Ealing during her sick leave and summarily dismissed her for gross misconduct. It argued that she had committed gross misconduct by “fraudulently claiming sick pay” from Imperial despite being fit enough to work for another employer at the same time.
The EAT was highly critical of Imperial and its handling of her dismissal, holding it to be unfair. Again, this was because being unfit for one job did not preclude her from being fit for another, as with Mr Weston’s case against Royal Mail.
In another striking similarity, the EAT found that Ms Perry had contributed to her dismissal by failing to obtain permission from Imperial to carry on with her second job during her sickness and said that any award of compensation should be reduced by 30% for contributory conduct.
Well, try to ensure that you know if your employees have second jobs. Make this a requirement as per their contracts and/or your induction processes. Remember that unless they are working in competition or on work time, you may not be able to prevent this, but you can ask to be notified (and consent given).
In terms of whether an employee can work in their second job whilst off sick from their employment with you, these cases confirm that it is not unlawful for an employee to claim sick pay in one job while continuing to work in another. That may well come as a surprise to some employers.
Of course, everything is fact-specific, and it is worth noting that both cases dealt with different physical requirements- one role was sedentary, the other was mobile. That they were both fit to do one job did not necessarily mean that they were fit to do the other. This might not always be the case, where, for example, the roles are much more similar.
Another point to take from this is the importance of impartiality in the process. Someone who is a witness should not normally be the investigator.
Remember also that up-to-date medical information will almost always be required before a decision is made. Assumptions about what an employee can and cannot do should always be avoided, and an occupational health report that informs the process will always help to support your decision.
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