Postman working second job while sick was unfairly dismissed

Postman working second job while sick was unfairly dismissed

An employment tribunal has ruled that a postman’s dismissal by Royal Mail for working a second job as a taxi driver while he was on sick leave with a hip injury and stress was unfair. Why?

Gross misconduct dismissal

Mr Weston (W) was employed as a postman for Royal Mail, delivering letters/parcels and walking up to ten miles per shift. He also sometimes worked as a self-employed taxi driver outside his Royal Mail shifts and his managers were aware of this, although there was nothing in his contract that required him to disclose this or to seek permission.

W had previously injured his hip in a work accident and when this flared up he requested light duties. This was declined and so he went on sick leave in February 2023 with hip pain and stress. From June 2023 he resumed his taxi driving work but didn’t notify his managers of this. This time, his taxi driving hours sometimes encroached into the contracted hours he would have been working for Royal Mail and he had been off sick. A few days later, W was seen driving his taxi by two managers. Following a disciplinary hearing, W was dismissed for gross misconduct offences, one of which was being dishonest with his management about his capability for work. He brought an unfair dismissal claim.

Employment tribunal ruling

The tribunal ruled that W’s dismissal was unfair. Royal Mail’s dishonesty allegation was underpinned by assumptions that W’s fit note meant that he was unfit for any work – and not just unfit for his duties as postman – and that his fitness to drive a taxi was a reliable indicator of his fitness to undertake his postman duties. Royal Mail had carried out no medical investigation with its occupational health advisor or with W’s GP to test these assumptions and the tribunal said this was outside the range of reasonable responses. However, W’s unfair dismissal award was reduced for his own contributory conduct in that he hadn’t sought advice from his GP as to whether he was fit to perform taxi driving work and he had worked at times when he was contracted with Royal Mail.

Sickness absence and second jobs

Check what an employee’s contract says about second jobs – are they required to seek your consent for a second job, or prevent them in breach of contract if they fail to do so. That would give you grounds for disciplinary action.

Otherwise, where an employee is discovered working in a second job during sick leave, you must investigate all the circumstances before you take disciplinary action. Factors to consider include whether: (1) the second job has some therapeutic value, or the outlet of the two jobs are sufficiently different so that the employee’s particular health condition genuinely only prevents them performing your job; (2) the second job is during the hours that they would otherwise have been working for you and for which you are paying them sick pay; (3) they have lied to you; and (4) they have sought advice from their doctor on whether they are fit enough to perform the second job and what that advice was.

Tip. While working in a second job during sick leave may be misconduct, this isn’t always the case. Don’t assume it or note automatically means an employee can’t do any work in any role.

Royal Mail thought the employee was being dishonest about his capability because it assumed his fit note meant he wasn’t fit for any work and that his fitness to drive a taxi was a reliable indicator of his fitness to work as a postman, and it hadn’t tested these assumptions. Always consider the circumstances and obtain medical advice if needed.