In Perry v Imperial College Healthcare NHS Trust, the Employment Tribunal (ET) dismissed Ms Perry’s claim that her dismissal on the ground of alleged gross misconduct was unfair. The Employment Appeal Tribunal (EAT) has now ruled that the ET’s decision was fundamentally flawed in law and could not therefore be allowed to stand.
Ms Perry worked part-time for Imperial College Healthcare NHS Trust as a community midwife. This involved visiting patients in their own homes. Since 2006, she had suffered from a chronic knee problem, which affected her mobility. In September 2007, she took on a second part-time job, working as a family planning nurse for Ealing Primary Care Trust. This job was based at a clinic very near to where she lived and did not clash with the hours she worked for Imperial.
From December 2007, Ms Perry’s knee condition made it impossible for her to continue working for Imperial and she went on sick leave. She was still able to carry on performing her work for Ealing, but did not notify Imperial of this fact. Towards the end of 2008, a gradual return to work with Imperial was being considered. At this point, it came to Imperial’s attention that Ms Perry had been continuing to work for Ealing. Her manager wrote to her saying that an allegation of fraud had been made in respect of her continuing to work elsewhere whilst in receipt of sick pay from Imperial and the matter would be investigated.
Prior to the investigation, Ms Perry obtained a letter from her GP explaining that her job with Ealing involved only one evening a week and was still possible for her because it was desk-based and caused no extra stress on her knee. The contents of the letter were made known to her manager but she refused to accept it as evidence. The investigatory hearing concluded that the allegations made against Ms Perry were well founded and she was summarily dismissed for gross misconduct. Her dismissal letter stated that an employee cannot work for another employer while in receipt of sick pay. The investigation had established an intention on her part to defraud Imperial and her actions had cost it a large sum of money.
In fact, statutory sick pay is contract specific. There is nothing to prevent an employee with two completely separate jobs claiming sick pay in respect of one they are unable to fulfil whilst continuing with work they are capable of undertaking. Furthermore, Ms Perry’s manager must have known from the information contained in the GP’s letter that there was no question of her being paid twice for the same hours as there was no overlap between her two jobs.
Ms Perry appealed against the decision to dismiss her and an internal appeal hearing was held. By this time, having come to appreciate the true factual position, Imperial’s stance had changed significantly. It criticised Ms Perry for not complying with the terms of her employment contract by notifying her manager that she planned to work elsewhere whilst absent on sick leave and gaining permission to do so. She had therefore deceived Imperial and this amounted to gross misconduct sufficient to justify her dismissal.
The EAT found that the ET’s ruling could not be sustained as it had omitted to ask whether the employer’s decision to dismiss was within the range of reasonable responses available to a reasonable employer given the individual facts of the case. On that basis alone, Ms Perry’s appeal must be upheld.
The EAT then went on to substitute its own finding, on the basis that the answer to the question whether or not the employer’s action met the reasonable response test was obvious. The conduct established at the appeal hearing was completely different from that used to justify the earlier decision to dismiss Ms Perry. The ET had found as a matter of fact that she was mistaken rather than dishonest in failing to ask for permission to carry on working for Ealing. Her conduct was not such as could have resulted in any reasonable employer deciding to dismiss her. The dismissal was therefore unfair.
Says <<CONTACT DETAILS>>, “Normally, if it transpires that evidence used in support of a decision to discipline an employee is factually incorrect, the decision should not stand. If the employer believes that there is sufficient alternative evidence to warrant disciplinary action, the matter should be investigated afresh.”