When companies are faced with dismissing employees, it is essential that the laws governing both employment and dismissals are fully explored and correctly applied to avoid any claims further down the line. A recent case, Perry v Imperial College Healthcare, travelled to the Employment Appeal Tribunal where the position of an employee with two jobs was in fact seen to be unfairly dismissed for taking sick leave from one job while continuing to work in the other.
As background, the claimant, Ms Perry, worked part-time for two different employers, Imperial College Healthcare NHS Trust (‘Imperial’) and Ealing Primary Care Trust (‘Ealing’). Her job for Imperial involved a high degree of physical activity and travel while her second role at Ealing was desk based. Due to a knee condition, she was signed off work and received sick pay including statutory sick pay from Imperial. She continued with her Ealing job since it was not affected by her condition. This position was also outside the hours she would otherwise have been working for Imperial. However, Ms Perry was subsequently dismissed by Imperial for intentionally defrauding them of "a large sum of money" by claiming sick pay while undertaking paid work.
Ms Perry appealed Imperial’s decision, and during the course of dealing with and rejecting that appeal, Imperial altered its reasoning for the dismissal. They argued that, in line with a clause in her contract, Ms Perry had failed to obtain prior permission before working elsewhere during sick leave. Ms Perry claimed unfair dismissal, but lost at the Employment Tribunal, and subsequently appealed to the Employment Appeal Tribunal (EAT). The EAT held that the decision to dismiss was incorrect and noted there is nothing to stop an employee from being paid sick pay for one job whilst being medically fit to perform another job for a different employer, provided it is outside of their normal working hours with their other employer. The EAT also found that the Trust should not have attempted to change the reason for the dismissal during the appeal process but that a fresh procedure should have been started.
This case in particular has shown that employers must clearly convey the reason for a dismissal, taking into account all related circumstances. It also highlights the importance of ensuring the original decision to dismiss is based on fact, which can be supported at appeal or tribunal level. Please feel free to contact our Employment team if you have any queries with regards to Employment Law including dismissals.
