Employee cannot receive sick pay and do paid work at the same time

In McCann v Clydebank College [EATS/0061/09], Mr McCann, a part-time lecturer, was absent from Clydebank College (the College) due to stress and hypertension. Mr McCann was dismissed for receiving sick pay from the College – while he was doing paid work in his own business – without the consent of the College. The EAT held that the College had fairly dismissed Mr McCann for gross misconduct.

Mr McCann was not dismissed because the College believed that if he was fit to work in his own business – he was also fit to work at the College.

The College had a legitimate interest in preventing Mr McCann from doing any paid work during or outside of his part-time working hours because:

• The other work done by Mr McCann may have hindered his prospects of recovery.
• Mr McCann received sick pay to compensate him for his lost income. If Mr McCann was still able to earn an income – he should have done so with the College’s consent, e.g. the College may have allowed him to do the paid work with reduced sick pay.

Practical Implications for HR Professionals

A sickness absence policy should clearly state that an employee must obtain the written consent of their employer in order to undertake any paid or unpaid work for another employer if they are absent from work due to ill-health.