The answer isn’t always straightforward. It can depend on your health, your job duties, and whether you’ve told your employer.
Employment Law Solicitor Lauren Kilbride explains how the law views this situation, using real-life examples to help you understand your rights and responsibilities.
Case 1: working while on sick leave can be gross misconduct
In the case of Brito-Babapulle v Ealing Hospital, Ms Brito-Babapulle was a doctor who had been told not to do any private work while she was off sick. But she went ahead and continued seeing private patients anyway. As a result, she was fired for gross misconduct-a serious breach of her employer’s trust.
Case 2: different job, different rules-but you still need to communicate
In Perry v Imperial College Healthcare, Ms Perry was off work from her main job as a community midwife because of a knee injury. That role involved cycling and climbing stairs. However, she kept working at her other job. This was a desk-based position she only did on Monday nights, which didn’t affect her injury.
But Ms Perry didn’t tell her main employer that she was still working her second job. When they found out, they accused her of dishonesty and fired her, saying she had “defrauded” them by taking sick pay while still earning money elsewhere.
The tribunal’s decision: was it fair to sack her?
At first, the tribunal sided with Ms Perry’s employer and said the dismissal was fair. But on appeal, the Employment Appeals Tribunal (EAT) said Ms Perry was unfairly dismissed. The key reason? She was genuinely unfit for her midwife job but fit to do the desk job. That’s legally allowed.
However, because she didn’t tell her main employer about the second job, the court reduced her compensation by 30%. They said she had some responsibility for not being upfront.
Can you work while off sick?
In short, yes, but it depends. If you’re off sick from your main job but still working a second one, it’s not automatically a problem, especially if you’re medically unfit for one but fit for the other. For example, a physical injury might stop you from doing a job that involves lifting or walking but not affect your ability to do a desk job.
In Ms Perry’s case, her GP confirmed that while she couldn’t do her active midwife job, she was still well enough to work at a computer in her other role. That kind of situation is legally acceptable. However, communication with your employer is crucial.
What do employers and tribunals consider in these cases?
If an employer is deciding whether to dismiss someone for working a second job while off sick, there are a few key things they look at.
Type of work
If you’re off sick due to a condition that stops you from doing your main job, but not your second one, it may not count as misconduct. For example, a leg injury might stop you from making deliveries but not affect a desk-based evening job. You should not be working during the hours you’re expected to be off sick from your primary job.
Your employment contract
Some contracts say you must get permission to work a second job. If you didn’t get permission, or if your contract says you can’t take on extra work at all, you could be breaching your contract. This may lead to disciplinary action.
Whether a fair process was followed
Before dismissing an employee, the employer must carry out a proper investigation and follow their disciplinary procedures.
Every situation is different, but these are the general points that are considered when deciding whether someone should face consequences for working another job while off sick.
If you are at all unsure about whether a dismissal is fair or unfair, call us on 03456 465 465 or email enquiries@rotherabray.co.uk. We are always happy to provide you with expert employment law advice, whether you’re an employee or an employer.
Disclaimer: This article is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers.
