Working
for another employer while on sick leave

In
McCann v Clydebank College, the EAT held that the default position that an
employee may not undertake paid work for anyone else at a time when he is
contracted to work for his employer did not change because the employee was
unable to work due to illness.

Mr
McCann was employed by Clydebank
College as a part-time
lecturer in motor engineering. He was also the proprietor of a local garage. Mr
McCann was absent from work at the college due to illness and received
contractual sick pay. Evidence came to light that he was working at the garage
whilst claiming sick pay, confirmed by covert surveillance. He was dismissed
for “working for financial gain while drawing sick pay from the
College”. A tribunal rejected Mr McCann’s unfair dismissal claim.

Mr
McCann appealed arguing that as he worked part-time, his lecturing rota varied
and he could not be penalised for working elsewhere on days when he ‘might not’
have been required to attend the college anyway. Furthermore, placing him under
covert surveillance contravened his right to privacy under Article 8 of the
European Convention on Human Rights.

The EAT rejected the
appeal. The default position that an employee may not undertake paid work for
anyone else at a time when he is contracted to work for his employer did not
change because the employee was unable to work due to illness. An employer has
a legitimate interest in prohibiting the employee from using the employer’s
time to do paid work elsewhere, particularly as that work might hinder the
employee’s swift recovery. As to the surveillance, Article 8 would only be
breached if the surveillance was disproportionate, but in this case it was proportinate
given the allegations of gross misconduct.

August 2010