SICKNESS ABSENCE - 27.04.2022

Working elsewhere during sickness absence

A subscriber’s query

A subscriber has an employee who’s been off sick for two weeks and a colleague has alerted them to the fact that this individual has been working elsewhere during this period of sickness absence .

Our subscriber is now concerned that their employee’s sickness absence isn’t genuine and wants to know if they have automatic grounds for disciplinary action.

First things first

Whilst this may suggest that the employee is out of line, a careful approach is needed here. The first issue to consider is the motivation of the employee who’s alerted them to the potential moonlighting - they could be causing trouble or have made a mistake.

So, our subscriber’s first enquiry should be how this employee has acquired this information and whether they have any proof, e.g. posts on a social media or they have physically seen the employee working elsewhere.

Next stage

Assuming things check out, our subscriber must not move straight to disciplinary proceedings. They should first conduct a fair and reasonable disciplinary investigation (see The next step ). During this process, our subscriber should bear in mind that whilst the employee is or might be working elsewhere it doesn’t necessarily mean that their sickness absence is fraudulent.

What must be carefully considered is:

• the reason for the employee’s sickness absence
• the nature of work they undertake for them
• the nature of the alleged moonlighting; and
• whether they have any policies or rules in place regarding secondary employment or working during sickness absence .

No problem

Where an employee’s secondary employment is compatible with their purported condition, it is unlikely that our subscriber will be able to take any disciplinary action unless they can point to a breach of a policy or procedure.

For example, if an employee is off sick with a bad back and they told their colleague they are answering telephone enquiries from home, it will be difficult to establish that their sickness absence is fraudulent, but it may be in breach of a policy.

Clear cut

On the other hand, if they’ve been seen or admit to working in a job role that’s incompatible with their current condition, our subscriber may have grounds for disciplinary action, e.g. someone who claims to have a bad back is working in a warehouse carrying out a physically demanding role. This would be difficult to explain.

Tip. Prior to the disciplinary investigation, you could issue a letter asking the employee about secondary work (see The next step ). Alternatively, you could use this letter as the basis of your questions during the disciplinary investigation.

For a notification of disciplinary investigation and letter asking about secondary work, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 09.