Working elsewhere when sick – is it possible?
The fact that an employee is working elsewhere while on sickness absence could be evidence that the sickness absence is not genuine, but this is not necessarily the case and depends on both the nature of work and the reason for the employee’s sickness absence.
The employee’s illness or condition may mean that they are not able to perform the work that they are employed by the employer to carry out, but that they could perform a different type of work. In a case involving an employee and their Healthcare employer, the Employment Appeal Tribunal held that there was nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying out work for another employer in a job that they are fit to do.
In such a case, the employer should investigate the circumstances fully before deciding whether or not to begin disciplinary proceedings. However, employers can include provision in their employment contracts to prevent employees working elsewhere without the employer’s consent – known as a “Whole Time Working” clause. If an employee works elsewhere, in breach of such a clause, the employer will be in a position to initiate disciplinary action against the employee for the breach of contract.
If you feel that your contract of employment needs to be strengthened, contact 121 HR Solutions on 0800 9995 121.