Employment e-Brief – can an employer considering an appeal against a dismissal find that the dismissal was fair on entirely different grounds to the original decision to dismiss?

Monday 3rd October 2011

In the recent case of Perry v Imperial College Healthcare NHS Trust, the Claimant had two separate jobs with two separate employees. The hours she worked for each employer did not overlap. She was employed by the Respondent as a midwife and her job involved visiting clients at their home and invariably required high levels of mobility, for example cycling to the premises and walking up stairs.

Her second employment with a third party was clinic based, during which the Claimant was desk bound.

The Claimant suffered knee problems, and underwent unsuccessful corrective surgery, for which she was signed off sick with the Respondent, and claimed Statutory Sick Pay. However, she felt able to continue her role at her second job, and continued to do so for a year until the Respondent became aware of the situation and initiated disciplinary proceedings on the grounds that the Claimant had defrauded the company.

Following a disciplinary hearing, the claimant was summarily dismissed. The Claimant appealed the decision to dismiss her.

At the appeal hearing, it was confirmed that employees were allowed to work for 2 employers and only had to disclose the second employment if the total number of hours exceeded 48 (which in this case did not); it was therefore confirmed that it was perfectly in order for an employee with 2 separate employments to be claiming sick pay in respect of one employment whilst continuing to work for the other. In this case, there was never a time when the Claimant was being paid twice because her hours in the second employment did not overlap with those at the Respondent. Accordingly, the original decision to dismiss was both legally and factually misconceived.

However, upon further scrutiny, it was discovered that the Claimant’s contract of employment with the Respondent stated that, while on sick leave, she was not permitted to work elsewhere without prior permission, and by not disclosing this information, the Claimant had denied the Respondent the chance of re-deploying her to lighter duties. Accordingly, the appeal panel upheld the decision to dismiss, albeit upon completely different grounds to the original dismissal.

The EAT found that a dismissal in the circumstances was not an appropriate sanction open to a reasonable employer in this context. However, it didn’t rule out finding alternative reasons for dismissal at an appeal hearing to those of the original decision, provided that they justified summary dismissal. It seems then, that provided a dismissal on alternative grounds is a reasonable and appropriate sanction open to a reasonable employer taking into account all of the facts of the case, then such a situation can potentially be fair.

For further information on this case, or for advice on any other employment issue, please contact a member of the Employment Team.