Can an employee work elsewhere while on sickness absence?

The fact that an employee is working elsewhere while on sickness absence could be evidence that the sickness absence is not genuine, but this is not necessarily the case and would depend on both the nature of work and the reason for the employee's sickness absence.

The employee's illness or condition may mean that he or she is not able to perform the work that he or she is employed by the employer to carry out, but that he or she could perform a different type of work. In Perry v Imperial College Healthcare NHS Trust EAT/0473/10, the Employment Appeal Tribunal held that there is nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying out work for another employer in a job that they are fit to do.

The employer should investigate the circumstances fully before deciding whether or not to begin disciplinary proceedings.

Employers can include provision in their employment contracts to prevent employees working elsewhere without the employer's consent. If an employee works elsewhere, in breach of such a clause, the employer will be in a position to initiate disciplinary action against the employee for the breach of contract, rather than any disciplinary action being dependent on the question of whether or not he or she was genuinely unfit for work.