Can someone point me to the basic law or any caselaw authority which would assist in the following
A member of staff employed as a trainer has been on sick leave,paid SSP during absence which is still on going.Employer has discovered the employee who says he cannot come back to work yet is registered as a taxi driver in the evenings.
What is the employer entitled to do and expect?
Could it be really claimed that this new job is providing therapy/relief from the stress caused in the first or?
Thank you
Jennifer Topping
2 Responses
Working while off-sick
A doctor may recommend that an employee who is signed off sick undertake activities which can be therepeutic; these are unlikely to include alternative paid employment! If a doctor has signed an individual as being unfit for their permanent role, and there is a claim for SSP, I expect the local authority (who regulate taxi drivers) would also be interested to know, as there would be the possibility of this person not being fully covered by their insurance as they are driving for gain while being considered medically unfit to work; the certificate that is issued by the doctor covers 24 hours each day, not just the bits that the employee wants it to cover. The easiest way is to discover if the employer’s policy allows for alternative/undeclared employment. Most organisations state that any other employment undertaken must not conflict with the primary role, nor prevent the employee from giving full attention and commitment to that role. It could be argued that as this person is actually working, rather than undertaking therapeutic activities, he is actively working to slow down his recovery. Finally, on the subject of SSP, this is a benefit that the company is claiming on behalf of the employee, made on the basis that the employee cannot work and is not receiving full income. I’m a bit out of date with benefits claims, but it strikes me that there is the potential to consider that claim fraudulent, just as if the employee were making the claim personally, while working and receiving income.
Legal position
The rules for SSP are very straightforward, each employer has to make its own separate decision, is the employee genuinely unfit, by reason of physical or mental disablement, to carry out the work they would reasonably be required to do under their contract. The medical certificate is a powerful argument to allow sick leave but it does not automatically allow it.
It is possible to be unfit to train but fit to drive but i agree with Rosemary there are issues which need to be explored and the fact this person considers themselves to be fit to work as a taxi driver gives you the right to enquire as to the genuine inability to work for you.
The SSP issue as a benefit is actually irrelevant because very few employers can claim it back so there is never an issue of benefit fraud.
Tread carefully.