21 September 2011 #Employment
This is the question posed by the recent EAT case of Perry v Imperial College Healthcare NHS Trust.
In this case the employee worked for two different NHS Trusts in different roles. She fell ill and, due to mobility prioblems, was signed off sick by Imperial. She was well enough to continue with her other job and did so. Imperial found out, felt she had fraudulently claimed sick pay and dismissed for gross misconduct.
The appeal manager did not support the reasons for dismissal but instead confirmed her dismissal for a new reason - that she should have told Imperial that she could do other work, giving them the opportunity to find her alternative duties.
Interestingly the EAT did not decide that the appeal panel could not change in reason for dismissal. Instead found that the dismissal was unfair because the reason given (that she should have told Imperial about her capacity for other work) was not within the range of reasonable responses open to a reasonable employer and, as a result, the dismissal was unfair.
Although this case doesn`t answer the question above, Buddy suggests that employers should tread carefully if faced with a similar situation as changing reasons on appeal could be deemed unfair. The case also serves as a reminder to appeal panels to review whether dismissal is a resonable response to the facts found.