In a recent case, McCann v. Clydebank College, the Employment Appeal Tribunal (EAT) has decided that, where the employee cannot do their main job because of illness, the default position is that he may not partake in paid work for another employer.
In the very least the employer's consent would be required. This consent could be in exchange for a reduction in the rate of contractual sick pay, paid by the employer. The EAT further concluded that covert surveillance does not contravene the individual's right to privacy under Article 8 of the European Convention of Human Rights (ECHR), providing the level of covert surveillance is not disproportionate to achieving its aims.
The Claimant, Mr McCann, was employed by Clydebank College as a part-time lecturer in automotive engineering. He was also the proprietor of a local garage. Whilst he never obtained express permission from the college to work at the garage, his employer was aware of it and at no time did they raise any objection to it.
Mr McCann was on sick leave, and receiving contractual sick pay, when a covert surveillance operation, commissioned by the College, revealed he was working at the garage. Mr McCann was taken through the College's disciplinary process for "working for financial gain while drawing sick pay from the College." The result of the disciplinary process was his dismissal. After losing a claim for unfair dismissal in the Employment Tribunal, the Claimant appealed to the EAT.
The basis of Mr McCann's appeal was that his timetable with the College was such that he was not required to work on a Thursday or Friday. As such, he could not be asked to attend work on these days and so was doing no wrong by working in his garage on them. He also raised an issue in respect of the College's covert surveillance stating that it infringed his Article 8 right to privacy under the ECHR.
Judge Underhill concluded that the default position is that an employee may not partake in paid work for anyone else while he is receiving contractual sick pay from his employer. He further concluded that the employer should be allowed to trade his consent for a reduction in the payment of sick pay.
In respect of Mr McCann's claims that he was not time-tabled to work on Thursdays and Fridays, it was concluded that the decision to dismiss him was not based on his absenteeism on these particular days alone. Indeed, he had worked in the garage on other week days when he was supposed to be working for the College.
In relation to the question regarding Article 8 of the ECHR, Judge Underhill followed McGowan v. Scottish Water and ruled that the surveillance, in this matter, was not disproportionate enough to warrant a breach.
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