In this series, Annalisa Marsay explores recent employment tribunal decisions that offer valuable guidance for employers managing everyday HR challenges.
Working a second job whilst in receipt of company sick pay: Is dismissal fair?
Scenario: Your employee is off work on sick leave with long-term mental health issues and has received company sick pay for a prolonged period. You discover that the employee is working a second job in a different field. Although this secondary work had been previously disclosed and accepted by you whilst the employee was fit for work, its continuation during paid sick leave feels dishonest and incompatible with receiving company sick pay.
Case: This situation played out in the case of Mr. L. Weston v Royal Mail Group Ltd – Judgment (PDF) . While not a binding precedent, the tribunal’s decision offers important insight into how such cases may be viewed and decided by employment tribunals.
Case background
Mr Weston had been employed by Royal Mail for nearly 16 years. In 2021, he raised a grievance alleging discrimination based on his sexual orientation. Several further grievances followed, pointing to ongoing workplace issues.
Whilst on sick leave, Weston resumed work as a self-employed taxi driver. Royal Mail had long been aware of this side job and had not raised objections—until now.
Upon learning he was driving during sick leave, Royal Mail launched a disciplinary investigation. They claimed this conduct was dishonest, inconsistent with his medical certification, and that he had been abusive and aggressive when confronted. He was ultimately dismissed.
Mr Weston brought claims for unfair dismissal, disability-related harassment, and victimisation before the Employment Tribunal.
Legal issues
The tribunal examined several key issues:
- Was it fair to dismiss Mr Weston for working a second job whilst in receipt of company sick pay?
- Did his actions amount to a breach of mutual trust and confidence?
- Did Royal Mail follow a fair and reasonable disciplinary process?
Additional claims under the Equality Act 2010—including harassment and victimisation—were raised but dismissed.
The second job: Tribunal viewpoint
Royal Mail argued that working as a taxi driver during sick leave undermined their trust and was incompatible with Mr. Weston’s stated inability to work. Mr. Weston countered that taxi driving was significantly less stressful and more manageable than his role at Royal Mail, making it suitable given his health condition.
- The tribunal acknowledged that working another job during sick leave can, in some circumstances, justify dismissal. However, in this case:
- Royal Mail had long accepted his secondary role.
- There was no evidence the taxi work conflicted with his medical condition.
Tribunal findings
Mr Weston was unfairly dismissed.
The employment tribunal found:
- Royal Mail mishandled the disciplinary process, failing to investigate thoroughly and impartially or consider mitigating factors.
- Weston’s second job did not justify dismissal in the absence of evidence showing it was incompatible with his sick note. Royal Mail were wrong to assume that he fit note meant that he was unfit for “any work”.
- Royal Mail’s prior acceptance of his taxi work undermined their position.
However, the tribunal did reduce Mr Weston’s compensation to account for elements of blameworthiness on his part, namely that he did not seek medical advice on the implications of taxi driving on his recovery and, that he worked at times when he was contracted by Royal Mail. The tribunal assessed that there was a 60% chance that he would have been fairly dismissed had Royal Mail followed a fair and impartial process. He was ultimately awarded £3,010.
Key takeaways for employers?
- Be cautious about assumptions. Secondary work during sick leave isn’t automatically misconduct—consider the nature of the illness and the work involved.
- Investigate fully and fairly. Dismissal decisions must be based on genuine beliefs following a reasonable investigation. The employee’s explanation must be taken into account and flaws in the process can lead to adverse findings.
- Grievances matter. When grievance and disciplinary issues overlap, it’s is important to address grievances before concluding disciplinary action.
Conclusion
Employers are right to question whether secondary work during sick leave is appropriate, but each situation must be judged on its own facts. A fair, thorough process is essential to ensure that your decision stands up to scrutiny. Even where a small award is ultimately made, the legal costs and management time taken in defending the claim means that the overall cost is much greater than the actual award made. Taking early strategic advice could save thousands in the long-term.
Get in touch
If you would like assistance with a disciplinary action or an employment tribunal claim, please contact Melanie Rowe (Partner) or Annalisa Marsay (Trainee Solicitor). You can reach Melanie on 07854 029922 or you can email her at melanie.rowe@murrellassociates.co.uk You can contact Annalisa on 07784358873 or you can email her at annalisa.marsay@murrellassociates.co.uk.
Alternatively, you can send us a message.
