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When sick staff work elsewhere

Gemma Sowerby on the rules on covert surveillance and working while sick

Gemma Sowerby on the rules on covert surveillance and working while sick

The case of McCann v Clydebank College (2010 UKEATS/0061/09/B) has clarified what employers can do when an employee receiving sick pay undertakes alternative paid work, and when it is proportionate to use inquiry agents to investigate employees off sick.

The employer knew that McCann, a lecturer, owned a garage in which he worked when he was not at the college.  He was absent from work with “stress and hypertension” and received sick pay.  The employer began to suspect he was working at the garage when he would normally be at the college.  It instructed inquiry agents who produced a DVD showing McCann at the garage.  A disciplinary investigation followed and he was dismissed.

McCann claimed unfair dismissal and that the surveillance breached his right to privacy under article 8 of the European Convention on Human Rights.  The tribunal found that “working for financial gain while drawing sick pay” was an admissible reason for dismissal, and that the use of surveillance was proportionate.  McCann’s appeal also failed.

Employers should note that the employee was not dismissed for working while on sick leave, but for accepting company sick pay while gaining financial advantage by working elsewhere.  The same argument will not be sustainable where an employee is working while off sick but not receiving company sick pay.  An employer may try to argue it is inconsistent for an employee to work for another employer while on sick leave.  But, whether this succeeds depends on the reason for the absence. 

The EAT in this case specifically noted that an illness which prevented employees performing their contractual duties may not prevent them doing other kinds of work.

The EAT also said that employers did not necessarily need a policy requiring employees to seek consent prior to undertaking remunerative work while receiving sick pay.  Employees contractually required to work do so on an exclusive basis, and that position does not change when they cannot work through sickness.

Surveillance is likely to be considered proportionate where an employer suspects that an employee is “moonlighting” in breach of a specific contractual clause.  It will not be proportionate if it goes further than is necessary to prove the point.  Employers need to ensure the surveillance is not unduly intrusive.

Gemma Sowerby, Solicitor, gemma.sowerby@weightmans.com