Dealing with misconduct

Disciplinary procedure: dealing with misconduct

The Employment Appeal Tribunal has held that an employee on sick leave was unfairly dismissed for misconduct when she carried on with a second part-time job, for which she was medically fit, without permission from the first employer.

The first job involved the employee cycling to patients' homes and sometimes climbing stairs in high-rise buildings. Due to a knee condition, she was signed off work and received sick pay (including statutory sick pay). She carried on with the second desk-based job as it was not affected by the knee condition.

The case provides two lessons for businesses:

• Handling misconduct issues. Employers who realise, during the course of an appeal against dismissal, that the original reason for dismissal can no longer stand, should not simply attempt to salvage that decision by confirming the dismissal on new grounds. The procedure should ideally be started afresh and the case considered with an open mind.

• Handling sickness issues. An employee with two jobs for two different employers, who is on sick leave from one employer, is not necessarily prevented from continuing to perform their duties for the other employer.

This checklist highlights the key issues a business should consider when conducting a disciplinary procedure connected with misconduct or poor performance.

For further information, please contact our Employment Law Team.

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