An employee was unfairly dismissed by her employer who found her guilty of misconduct when it discovered that she was working a second job when she was signed off work sick.
In Perry -v- Imperial College Healthcare Trust, Ms Perry was employed by the Trust has a part time midwife. Her job required her to be mobile, travelling from client to client and accessing different types of accommodation. In September 2007, she took on a second job working for Ealing Primary Care Trust (“Ealing”) as a family planning nurse. This was a clinic-based job at a location only 100 yards from her home. The two jobs did not clash in any way.
Ms Perry suffered from a knee condition and December 2007 was signed off work from her role with the Trust and was paid sick pay. She continued to work her part time hours for Ealing as this job did not require her to be mobile. She did not notify the Trust about her second job or that she was still working during her sick leave with the Trust. When they discovered this, she was dismissed for gross misconduct. At first, she was accused of deceit and fraud, but those allegations were later dropped and her dismissal was upheld by the internal appeal panel on the grounds that she was contractually bound to seek the Trust’s permission to work a second job.
The Employment Appeal Tribunal (EAT) held that Ms Perry’s dismissal was unfair. It was not unusual for an NHS employee to have two jobs with two different PCTs and she was not being paid twice for the same hours. Although she was contractually bound to seek the permission of the Trust to work a second job, the decision to dismiss was outside the range of reasonable responses and therefore unfair. However, a 30% reduction was made to Ms Perry’s compensation on the grounds of contributory fault.
This case is a useful reminder to employers to carry out a thorough investigation into the facts before making its decision as to fault.
