The Employment Appeals Tribunal has confirmed that an employee can claim sick pay in one job, but continue working in another if they are able.

In the case of Perry v Imperial College Healthcare NHS Trust UKEAT/0437/10, the Claimant, Ms Perry, was a midwife who also worked in an office. The role as midwife included physical activity, including riding a bicycle to visit various clients, and walking up stairs. The Claimant suffered from a knee condition, and as a result, was signed off work by her GP.

Ms Perry remained off work due to sickness for a period of a year, during which time she claimed Statutory Sick Pay (SSP) and in the meantime continued to work in her second job, as being deskbound did not aggravate the Claimant’s illness. Upon the NHS Trust becoming aware of the Claimant’s second job, they invited her to a disciplinary hearing and dismissed her instantly on the grounds of gross misconduct, citing that she had defrauded the Trust.

Upon the Claimant’s appeal, the Trust appeared to changed its stance, and relied upon a clause in the employment contract stating that an employee was prohibited to work elsewhere whilst off on sick before obtaining permission. The Claimant responded by arguing that she had thought such clause related to any new employment an employee may gain, and explained that the two different roles that she had did not create any shift pattern clashes, nor did the weekly amount of hours she worked in total exceed 48, the maximum amount of hours an employee can work in line with the Working Time Regulations. Despite Ms Perry’s protests, the Trust proceeded to dismiss the Claimant’s appeal.

The Claimant proceeded to lodge a claim for unfair dismissal, which was dismissed by an employment tribunal; however, the decision was overturned by the Employment Appeals Tribunal.  The EAT referred to a section within the HMRC Employer Helpbook for Statutory Sick Pay, which specifically states that an employee working under two separate contracts, may claim SSP if incapable of work under one contract, while still being capable of working under the other.

The EAT criticised the Trust’s change in tack from the initial allegation of defrauding the Trust, to breaching the contract of employment. Although the EAT found in favour of Ms Perry, they did reduce the amount of compensation awarded by 30% on the basis that she partially contributed to her dismissal by failing to seek permission to continue with her second job, as stipulated in her contract.

If you require any advice with regards to handling sickness absence, or information on the JCP Solicitors HR Package, please contact Luke Welsh on 01792 525 400 or luke.welsh@jcpsolicitors.co.uk