In the case of Perry v Imperial College Healthcare NHS Trust 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 was as a community midwife, and involved cycling to patients' homes and sometimes climbing stairs in high-rise buildings. Due to a knee condition, she was signed off work and received sick pay including statutory sick pay. However, she carried on with her Ealing job, which was desk-based and therefore not affected by her knee condition. This job was carried out on Monday evenings, and not during the hours she would otherwise have been working for Imperial.
When it found out that Ms Perry was still working for Ealing while signed off sick, Imperial carried out a disciplinary procedure and dismissed her. The reason given for the dismissal was that she had intentionally defrauded Imperial of "a large sum of money", by claiming sick pay whilst undertaking paid work. It refused to consider a letter from Ms Perry's GP confirming that, while she was unfit for her Imperial duties, she was still fit for her Ealing job which was completely separate in nature and did not put any stress on her knee.
When she appealed against dismissal, the employer added another charge against her - that their sickness policy required Ms Perry to tell them she was working elsewhere while on sick leave. She argued that she did not know she was required to do this. The Trust found that her failure to inform it was fraudulent and the dismissal was upheld.
The Employment Appeal Tribunal held that the dismissal was unfair but that Ms Perry’s compensation should be reduced because she contributed to the dismissal by failing to tell her employer she was working in Ealing while on sickness absence. It held that there is nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying on working for another job for which she is still fit as long as the two employment contracts are with separate employers.
Practical Tip: The most obvious lesson from this case is that employers who realise, during the course of an appeal against dismissal, that the original reason for dismissal can no longer stand, should not simply attempt to "salvage" that decision by confirming the dismissal on new grounds. The procedure should ideally be started afresh and the case considered with an open mind. The case also highlights what looks like a flaw in the handling of sickness absence by Imperial. Their argument seems to have been that, if Ms Perry was capable of desk-based work, she should have done more to let them know, so that they could consider redeploying her. However, it is arguably the employer's responsibility to ask these questions, and to make a decision using its occupational health advisers where appropriate. The introduction of ‘fit notes’ ought (in theory) to help identify cases of this nature where an individual is unfit for some types of work but fit for others.