Most employers would agree that working for other organisations or undertaking re-training during periods of sick leave is an unacceptable situation which could have a detrimental impact on businesses.

This may:

• Hinder the employee's prospects of a speedy recovery;
• Mean that an employer has to pay sick pay for longer periods than would otherwise be necessary;
• Pay other staff overtime, engage temps or agency workers to cover the employee's absence; and
• Lead to inequitable situations, whereby employees are able to exploit their illness by being paid twice for the same period.

Employees should not legitimately expect to exploit their illness by being paid twice for the same period

In McCann v Clydebank College, Mr McCann was employed by Clydebank College as a part-time lecturer in motor engineering. He also owned a garage in which he worked when he was not at the college. Mr McCann was signed off work and was in receipt of sick pay from the college. The college suspected that he had been working at the garage during hours when he would normally have been obliged to be at the college and considered that this was inconsistent with his receipt of sick pay. Following an investigation and disciplinary hearing, Mr McCann was dismissed for gross misconduct for "working for financial gain while drawing sick pay from the College". He brought an unfair dismissal claim in the Employment Tribunal and lost.

In upholding the Tribunal's decision, that the dismissal was fair the Employment Appeal Tribunal stated that, in a clear-cut case, it would be well understood by employees that they could not legitimately expect to exploit their illness by being paid twice for the same period and that to do so might constitute serious misconduct. However, it went on to strike a cautionary note that not all cases are clear-cut, and where there is room for ambiguity or innocent misunderstanding it may well be unreasonable to dismiss an employee for undertaking paid work during a period of sickness absence.

…but can they, when policies are unclear?

In Garden v Vetco Gray (UK) Limited, Mr Garden was dismissed after it was discovered that he had re-trained to become a driving instructor whilst off work on sick leave.

At the disciplinary meeting, Vetco concluded that Mr Garden had breached the terms of the Employee Handbook by undertaking training whilst off work sick and receiving sick pay. He was dismissed with immediate effect on the grounds of gross misconduct. Vetco relied upon the terms of its Employee Handbook which provided that (i) employees could not be employed elsewhere, without the prior written consent of the employer; and (ii) employees could not engage in any paid or unpaid activity during working hours without the express permission of management.

The Employment Tribunal held that on a literal reading, the Employee Handbook did not prevent Mr Garden from undertaking his unpaid training whilst off work on paid sick leave. Mr Garden's claim for unfair dismissal was upheld and he was awarded compensation.

Managing the risk

Vetco highlights that Employment Tribunals will take a strict approach to HR policies when determining whether an employer has acted reasonably in dismissing an employee for breach of a rule.

Therefore:

• Consider whether this is an issue for your business.
• Review existing policies to ascertain whether you have sufficient protection in place already.
• If there is a gap, consider implementing new/ revising your policies to include clear wording restricting employees from working for other organisations, undertaking re-training or studying during periods of sick leave.
• Ensure that employees are aware of any amendments to existing policies or the introduction of a new policy. Inform staff that any breaches of the policy may be deemed to be gross misconduct which can result in disciplinary action, including dismissal.

Lesley May is a senior solicitor in the employment team at Glasgow-based law firm Brodies