Sick pay and work

22 October, 2010
Working elsewhere while on sick leave
Page 1 

The National Association of Master Bakers (NAMB) receives many calls about bakers or shop staff found to be working elsewhere, while supposedly on sick leave from their employers.

An important non-bakery-related cases highlights your rights as an employer. In McCann v Clydebank College, Mr McCann was employed by the college as a part-time lecturer in motor engineering. He also owned a local garage, which he worked at.

McCann went off sick, and was paid contractual sick pay by the college. However, Clydebank discovered that he was working at the garage while claiming sick pay, and confirmed this via covert surveillance. They disciplined him and dismissed him for "working for financial gain while drawing sick pay from the College".

McCann claimed unfair dismissal and said that his timetable at the college meant he could not have been ordered to attend on Thursdays and Fridays, and that the covert surveillance contravened his right to privacy.

EAT judgement

The Employment Appeal Tribunal (EAT) confirmed that the principle that an employee may not undertake paid work for anyone else at a time when he is contracted to work for his employer did not change, because the employee was unable to work due to illness.

Interestingly, it suggested that the College could have negotiated an agreement to a reduction in sick pay in return for consenting to McCann doing the other work. The fact that McCann was not timetabled to work at the college on Thursdays or Fridays did not make the dismissal decision unfair and he had worked at his garage on other days anyway.

Surveillance decision

Finally, the EAT ruled that the question of the covert surveillance was a matter of proportionality and found, as a fact, that it was not disproportionate.

McCann lost his case.





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