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In most cases of employee illness or injury, the worker in question will receive sick pay under the terms of their employment while they take a complete break from work to focus on recovery. However, while this is by far the most common arrangement for full-time, contracted employees who need time off to get over an illness, the situation can vary according to the terms of the employee in question’s contract and/or the nature of their illness or injury.

If you have been made aware that you have an employee who is working in another job while signed off and receiving statutory sick pay and any other sickness benefits they may be entitled to from you, then you need to establish what the situation is from a legal point of view. To do this, you can enlist the help of one of the expert employment solicitors at Bray & Bray.

Workers’ rights regarding working whilst signed off sick

As with many legal situations, the law surrounding working whilst signed off sick will vary from case to case. As an employer, the first place you need to check is the employee’s contract. It may be that this states that they are not allowed to work for other employers as part of their contractual obligations to you, regardless of whether they are signed off sick or not. However, this is not always the case, particularly if the worker is part-time or an agency employee.

The nature of the work

Crucially, there is no legal case for stopping an individual claiming sick pay for a job which they have been declared medically unfit to carry out while working in a different job which they are medically able to fulfill their duties in. For example, if the work the employee does for you is of a physical nature while the other job involves sitting at a desk, then the precedent set in a previous employment tribunal decision states that this worker will be within their rights to continue their other work while receiving sick pay from you. Crucially, the onus is on you as an employer to offer alternative work to your employee in situations where it is possible to redeploy them to a less physical role. If it’s possible to arrange this, then it can be the best solution for you in terms of avoiding the financial drain of sickness pay. However, to avoid possible repercussions from a disgruntled employee you should only go down this route if your employee is genuinely capable of performing the alternative role. This is because putting pressure on a genuinely unwell employee to work while ill could be grounds for constructive dismissal.

Does my employee have to tell me about their other job?

No. If your employee is not prevented from working in another role while employed by you, then they are under no legal obligation to tell you about their other job unless their contract states that they must. This right is not affected if they find themselves in a situation where they are medically unfit to work for you, but able to continue in their other job. As stated above, it is up to you as the employer to offer them any alternative role that may be available while their medical condition prevents them from carrying out their usual duties.

What happens if I find out my employee is working in a similar job while claiming sick pay?

If you discover that your employee is working in a like-for-like role while claiming sick pay from you, then you will have a case against them. This is because a fraudulent claim for sick pay will constitute gross misconduct which usually gives you right to summarily dismiss your employee. At this point, it’s important to seek expert legal advice to ensure you proceed according to the letter of the law and avoid any future claims of unfair dismissal.

How do I prove my employee is doing the same job elsewhere while claiming sick pay from me?

In cases like this, if necessary, it is acceptable to use surveillance to prove that your employee is gaining financially by undertaking a similar role elsewhere while claiming sick pay from you. Again, it’s important to consult a specialist employment solicitor at this point as you must not use excessive or intrusive surveillance to prove your case.

Specialist advice about working whilst signed off sick

If you are dealing with an employee who is working elsewhere while claiming sick pay from you, it’s important to make sure you adhere to the correct legal processes and deal fairly with the employee in question. To discuss your needs, contact one of our expert solicitors on one of the following numbers: