Sick of redeployment
Labour & European Law Review Weekly Issue 241 27 October 2011
When deciding whether a dismissal is fair, Tribunals must ask whether it was within the range of responses available to an employer acting reasonably. In Perry v Imperial College Healthcare NHS Trust, the Employment Appeal Tribunal (EAT) said that it was not reasonable for an employer to dismiss an employee for failing to tell them she was working for another Trust whilst on sick leave just so that it could consider redeploying her.
Mrs Perry worked part time as a community midwife for Imperial and from 2007 as a part time family planning nurse in a clinic for another Trust in Ealing. Her hours of work did not overlap.
She developed a chronic knee problem which got so bad that she could no longer get out and about to do her job as a midwife and she went off sick in December 2007. A term in her contract said she must not do anything that was inconsistent with her duties while she was on sick leave, including working for another employer without first seeking the permission of her manager.
Mrs Perry did not tell Imperial, however, that she was still working for Ealing. When the Trust found out about a year later, it dismissed her for gross misconduct on the basis that it was fraudulent to work for another employer while receiving occupational sick pay from Imperial as she was effectively being paid twice.
She appealed that decision and although Imperial was aware by the time her appeal was heard that it was perfectly within the rules for her to work for two employers, it confirmed her dismissal on different grounds. This time it said that had it been aware she was able to do lighter duties, it might have been able to redeploy her.
The Tribunal found that although Mrs Perry was wrong in her belief that she did not need permission from Imperial to work for Ealing while receiving sick pay, she had acted in good faith.
Nevertheless, the Tribunal decided that Imperial genuinely believed that it should have been obvious to her that she needed to ask their permission. it also found that that belief was based on a proper investigation and the decision to dismiss her was therefore fair.
The EAT decided, however, that the appeal panel’s decision to dismiss was not within the range of responses available to an employer acting reasonably.
The panel was aware that Mrs Perry was allowed to work for another employer and did not have to inform them of that fact. It was also aware that she was entitled to sick pay while continuing to work for another Trust.
Although the panel was entitled to view her failure to seek permission from them as a breach of contract once she started to receive sick pay, there was no documentation that said she had to let them know so that they could consider redeploying her.
“There was simply no basis for such a view”, said the EAT “other than what was put forward by management at the appeal, no doubt in an attempt, after the event, to salvage something from what, by that stage, had plainly been an initially misconceived decision summarily to dismiss”.
It was therefore unreasonable for Imperial to have concluded that summary dismissal for gross misconduct was a warranted sanction for what, by that stage, had become a minor deception, if it was even that serious.
The two jobs had very different physical demands, but the employer’s decision-making was so poor that this fact got lost as did all the others that got in the way of the desired conclusion. The case is interesting for the suggestion that dismissal for a ‘minor deception’ was unwarranted.