There is often a misconception that an individual is prohibited from undertaking other paid work whilst they are signed off sick. Although some contracts of employment do provide that prior approval is required should an individual wish to undertake other paid work whilst employed, there is nothing in the law that strictly prohibits it. Where an individual is off sick from work, they may still be able to undertake other types of work.
The case of 3310944/2020 Mrs K Hibbert v The Chief Constable of Thames Valley Police illustrates this and demonstrates the (costly) consequences that can result where an employer unreasonably withholds or (in this case) withdraws prior approval given to an individual to undertake other paid work whilst employed.
In this case, the employee was a safeguarding sergeant who suffered mental health difficulties due to the emotional intensity of her job. She suffered from anxiety, depression and panic attacks, and had PTSD from past trauma. Upon attending an occupational health (OH) appointment, she was advised by the OH nurse that having other interests or hobbies could be a “positive outlet” to help her cope with the stressors of her role. As a result, she applied for permission from her employer to set up a small party and events business, which they granted.
About a year later, she was signed off work as the result of a work-related event that had a detrimental effect on her mental health. However, although she was unfit for police work, she was still fit to carry on her business and said it was therapeutic and helpful for her recovery.
Mrs K Hibbert
A few months later (once she had returned to police work) she was signed off sick again. At this point, the approval given to her to carry out her business was reviewed (triggered by her sickness absence) and was withdrawn by her employer. Their reasons for withdrawing their approval for her to carry on her business were that they expected her to be able to carry out her contracted role ahead of any business interest. The Claimant appealed this decision, saying that she was experiencing depression, anxiety and PTSD and that the business helps distract her and focus on positive things; however, the appeal was not upheld. When the Claimant’s husband emailed her employer asking them to reconsider, he was told that the Claimant had to provide medical evidence to show that her participation in the business helped her mental health. However, she was not able to obtain such evidence.
The Claimant was subsequently investigated by her employer after a member of the public reported her for “fraud and moonlighting” as she was undertaking her business whilst she was off sick. The Claimant, upon being informed she was being investigated for gross misconduct, was extremely upset and had a panic attack, and was signed off sick due to a relapse in her mental health. The Claimant later resigned, stating, amongst other things, that her employer’s investigation into her business interest had a deeply detrimental effect on her mental health.
The Employment Judge held that the withdrawal of her business interest was not proportionate, saying it would have been proportionate for her employer to take more time to make sure the decision to withdraw permission was not discriminatory (and also noted that they failed to speak to her before withdrawing permission). They further found that her employer took no steps to investigate the medical position despite being aware that withdrawing permission could have a detrimental effect on her mental health. Two of the Claimant’s claims of disability discrimination, and her constructive unfair dismissal claim, were upheld. The total compensation awarded to her was £1.1 million.
This case serves as an important reminder to employers that decisions regarding permitting employees to have a second job should be carefully considered, and such approval should not be unreasonably withheld. Employers should not assume that an employee who is off sick from their place of work is too sick to work at all, and permission for them to work elsewhere should not automatically be withdrawn without consideration. Employers should carefully consider any decision to deny/withdraw other paid work, including all facts in the circumstances, particularly where the employee has a disability. It should not be based on discriminatory reasons.
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