Tuesday, 24 February 2015

E-cigarettes in the workplace: first vaping tribunal decision is a warning for employers


E-cigarettes in the workplace pose a difficult question for UK employers. Should you treat them as if they are cigarettes or have different rules for their use? A recent UK employment tribunal case has highlighted how important it is for employers to ensure that the use of electronic cigarettes or “vaping” is included in their smoking policy. 


The employment tribunal in Insley v Accent Catering considered a claim by a school catering assistant that she had been constructively dismissed by her employer.
The headteacher of the secondary school where the catering assistant, Ms Insley, was working complained to her employer, Accent Catering, that he had seen her using an e-cigarette at the beginning of the school day in full view of pupils.
Ms Insley resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal. The tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly.
The tribunal stressed that, because Ms Insley had resigned, and not been dismissed, it could not decide the question of whether or not her actions amounted to gross misconduct, justifying dismissal. The tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim.
The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes. If Ms Insley had been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.
Felicity Alexander, employment law editor at XpertHR, explained: “The legislation prohibiting smoking in the workplace defines smoking as lit tobacco or any other substance that can be smoked when lit. E-cigarettes emit an aerosol that users inhale or ‘vape’ and this is produced from a heated solution containing nicotine.
“Employers cannot therefore rely on the legislation or their own policies that prohibit smoking to control the use of e-cigarettes in the workplace or to take disciplinary action for using e-cigarettes.”
E-cigarettes are coming under increased scrutiny because of emerging concerns as to the health benefits for users and those exposed to second-hand vapour. A 2014 report prepared for Public Health England concluded that the hazards of using e-cigarettes and being exposed to second-hand vapour are likely to be extremely low.
Employers cannot rely on legislation or policies that prohibit smoking to control the use of e-cigarettes in the workplace”
A World Health Organisation paper similarly concluded that e-cigarettes were less harmful than conventional cigarettes, but cautioned that the vapour emitted by e-cigarettes is not merely “water vapour” as frequently claimed, but a vapour containing nicotine and other toxic particles.
Alexander said that, although employers may wish to support cigarette smokers who switch to e-cigarettes, regulating the use of e-cigarettes in the workplace may be the best option to safeguard the health of all employees. This is in line with advice from the British Medical Association.
“Another factor to consider is that, until 2016, there are no controls over the content of e-cigarettes, so the toxicity and odour of the vapour from e-cigarettes may vary between different products,” Alexander said.

My Comment,    it was only a matter of time before this came up!     If you don't want your employees to having "vaping" breaks,   you will need a policy adding to your handbook,    call me! 

My thanks as always to  Personnel Today  for their articles  see them at 

Labour promises to double paid paternity leave


A Labour government would double paid paternity leave from two to four weeks, leader Ed Miliband is expected to announce later today.
  The Labour leader will also pledge to increase statutory paternity pay (£138.18 per week) by more than £120 a week to £260 a week. Legislation around shared parental leave comes into force in April, but government predictions show only 5,700 men are expected to apply for shared parental leave over the next 12 months. Currently just over half (55%) of new fathers take the two weeks' paid leave, which was implemented in 2003. Research has found many working fathers do not take the full two weeks off due to financial pressures. The plans will be funded by savings made from tax credits, Labour claims. -
Employment partner at law firm Weightmans Phil Allen said the proposal could "enable a more level-playing field for those employers who do currently allow longer paternity leave and who pay greater paternity pay, when compared with those who currently do not".
He added: "It will encourage all employers to treat fathers of new borns in an appropriate way – four weeks leave is not a significant problem for most employers.

“The rate of statutory paternity pay will assist those in lower paid jobs, but will still be a blocker for more highly paid employees unless their employers enhance paternity pay. These will sit alongside the new right to shared parental leave and pay and together may significantly increase the likelihood of fathers taking more time off to care for their children.”
Working Families CEO Sarah Jackson welcomed the proposals. She said: "Increasing paternity leave from two weeks to four weeks, and doubling the rate of statutory paternity pay, will be welcomed by many families and should be by business leaders too.  It’s an opportunity to re-engage with a core group of employees, to help them to give their best at work by recognising that they also want to give their best at home."
Dads not eligible

Separate research from the TUC has found only 40% of working dads will be eligible to take shared parental leave, because their partner is not in paid work.

Shared parental leave legislation does not allow mothers who are self-employed or not employed to share maternity leave or pay.

TUC general secretary Frances O’Grady said: “The UK is still decades behind other European countries when it comes to rights and financial support for new fathers.

“If politicians are serious about men playing a more active role after their child is born they must increase statutory paternity pay, and look at introducing some father-only leave that isn’t dependant on their partner being in work.

“Employers must also work more closely with unions, who often secure better paternity rights for dads.”
-
 See more at:

Our appreciation to HRMagazine for this interesting and informative piece,    for the full article see the link at :

The zero hours contracts problem: which political party holds the solution?


In the run-up to the general election, consultant editor Darren Newman looks at the hot topic of zero hours contracts and what both the coalition partners and the Labour Party propose to do about them.

In this general election year, there is one employment law issue that the major political parties are agreed on: something needs to be done about zero hours contracts.
The coalition partners obviously have a current advantage over the Labour Party in that they can put their proposals into law. The Small Business Enterprise and Employment Bill is currently before the House of Lords and the current clause 151 proposes that zero hours contracts should not be able to contain “exclusivity clauses”, which are contractual requirements placed on the employee not to work for any other employer for the duration of the contract.
This is unobjectionable in itself, but it is important to understand that the measure is almost entirely symbolic. In the first place, there is no real evidence that such exclusivity clauses are currently in widespread use. The Department for Business, Innovation and Skills (BIS) estimates that just 17,000 employees are affected in the UK, but a survey conducted by the CIPD (Zero hours contracts – myth and reality) suggests that the figure could be as high as 120,000.
That larger figure, however, is based on a sample size of about 500 employees, and the question asked in the survey was whether or not the employer allowed them to work for other employers. It is unclear how many of the employees who thought that their employer would object to their working elsewhere actually had anything as formal as a contractual exclusivity clause.
Even if there is a serious problem with exclusivity, this measure will not solve it.

My thanks to the ever informative Expert HR for this item,    read the whole article on....read more

Could stronger strike controls backfire?


The Conservatives' proposals to limit and control strike action could backfire and lead to an increase in illegal activity.
The Conservative party has called time on public sector strikes. If victorious at May’s general election, it plans to introduce measures that require 40% of eligible union members working in health, transport, fire services or schools to back industrial action (currently only a simple majority is required). In its manifesto, the party is also set to publish plans to end a ban on using agency staff to cover striking workers and place curbs on picketing.
Secretary of state for transport Patrick McLoughlin led the announcements, which he says will protect both the public and union members from militant union bosses.
Ahead of a London buses strike last month, where only 16% of those entitled to vote were in favour of striking, McLoughlin argued it was “ridiculous” so few people could cause difficulties for eight million Londoners. “Before a strike is allowed to go ahead it must have much more support from the union members and cannot be called by politicised trade union leaders,” he said.
Labour Cabinet office shadow minister Lucy Powell responded by accusing the Conservatives of playing “political games with the unions”.
“Most government ministers don’t manage to get 40% of all eligible voters voting for them at elections,” she pointed out. “The Tories didn’t get anywhere near a majority at the last election.” 
Trade union view
Unsurprisingly, trade unions representing public sector workers have also attacked the proposals. Public and Commercial Services (PCS) union general secretary Mark Serwotka says the proposals would have “serious implications for staff and HR managers”. “It is quite obviously not designed to solve industrial disputes,” he adds.
He warns that rather than make strikes less likely, in the future employers might be faced with “more militant action, if employees started to feel that the law was now so heavily stacked against them they had little to lose by breaching it”.
This warning is echoed by Trades Union Congress (TUC) head of equality and employment rights, Sarah Veale. She says increasing the majority to 40% would make it almost impossible for strikes to occur. However, she agrees an increase in illegal industrial action is likely, which would be harder for employers to contain and settle. “The workers will just walk out because they are so frustrated,” she said. “The union won’t get into any trouble, but workers will be breaking their contract.”
Veale says it is unlikely employers would dismiss workers who took such steps, but suggests the situation would impact industrial relations. This would be further aggravated if employers replaced striking employees with agency staff.
She also questions whether picketing needed any further regulation. The number of people taking part in a picket line is currently restricted to six, and pickets can be charged with criminal offences if they are abusive or try to prevent people from entering the workplace.
“People do have a right in the UK to lawful assembly and freedom of expression,” says Veale. “What’s the impact of this going to be on other areas where people have a right to lawfully assemble?” 
Vote with your fingers?
Both PCS and the TUC have called on the government to tackle the problem of low turn-outs at union ballots by allowing them to introduce online and telephone voting systems. Currently only postal ballots are allowed.
Labour and the Liberal Democrats have both pledged to introduce electronic balloting if they are elected in May.
President of the Public Service People Manager’s Association
and head of HR and OD at Hertfordshire County Council Louise Tibbert says introducing a 40% threshold could be helpful in reducing strikes. However, she believes the effect would be different across unions. “There will be some trade unions that wouldn’t be able to achieve the new criteria, but some, such as those representing firefighters, probably would,” she says.
She supports the plan to allow employers to bring in agency staff. “Most of us have contracts with agency suppliers and we might be able to get a level of cover that enables services to continue,” she says.
Tibbert dismisses claims the changes would negatively affect relations between employers and employees. She says that once workers have decided to strike, those relationships are usually already damaged.
She also doubts whether the regulation changes would prompt further illegal industrial action. “It might do, but I still think people in the public sector have to be pushed quite hard to go on strike and walk out on service users,” she says.
Tibbert’s main concern is that the Conservative Party’s plans do not address the heart of why public sector workers often chose to strike. 
Money, money, money
In 2011 and 2012, pay was the main cause for days lost due to labour disputes, according to the Office for National Statistics. Central government cuts to public sector funding are an area over which HR directors’ control is limited.
“The difficulty in the public sector, unlike a private firm, is the action we’ve seen has been driven by national conditions,” says Tibbert. “There appears to be satisfaction with local employers, but nationally some of the trade union leadership are pushing ahead on things and trying to take the membership with them.”
Clintons employment partner Layla Bunni echoes Tibbert’s concerns. “The reason strike action has taken place is because of working conditions,” she says. “If there doesn’t seem to be any movement on that then obviously you’re not going to get very happy employees.”
She believes a 40% threshold would reduce the number of strikes in the public sector. But she also predicts employers will be reluctant to take up new powers to hire agency staff during industrial action. “It’s more expensive,” she reasons. 
Spoiling for a fight
Mike Emmott, the CIPD’s public policy adviser for employee relations, warns that aggressive future government restrictions on industrial action could in fact fire further confrontation. He predicts they would drive employees to push ballots over the 40% line and hold more drawn-out industrial action.
“HR has to communicate and keep open lines between workers and unions,” he suggests. “If it was perceived that the government is looking for a confrontation, the natural response is: ‘If you’re looking for a fight, we’ll show you one’.”
The Conservative Party is due to publish full details of the plans in its election manifesto before May 2015.
- See more at:

My grateful thanks to the ever excellent  HR Magazine for this piece.   see the original item on their webpage,  use the link. 

Tuesday, 3 February 2015

February NEWSLETTER employment law

My periodic newsletter on all things employment law related that I think you should be aware of.
View this email in your browser
Hello  << Test First Name >> ,
  
  I guess it's not too late  for a greeting for the beginning of a new year , I do sincerely hope you managed some quality "down time" at the end of last year .   I deliberately left out the January edition as we all needed a break, and, frankly, there was not much  to report.    This months collection basically reinforces the need to seek advice whenever a problem appears, before it becomes all too real.         Read on for details, and, as always, call me or mail me if you have any concerns about this edition's content.

Kind regards,     Paul 
 

First The News:   Claiming sick whilst working elswhere
CIn Brito-Babapulle v Ealing Hospital NHS Trust Ms B was a consultant haematologist at
 
Ealing Hospital who also saw private patients, with the hospital's knowledge.  Whilst her contract did not prevent her from claiming sick pay whilst seeing private patients, she had been warned twice that to do so would constitute fraud.  

My Comment:    reported cases of this sort often reflect the world of NHS medical staff,   and not so much the more down to earth case of ordinary employees,  eg a mobile care worker, injured her back, but was able to continue as a petrol station cashier at the weekend,  a sitting in a pay kiosk job!   
      read full details
 


Newsflash:   How to decide if obesity is a disability 

 The controversial issue of whether employees need special treatment
The latest and most important of a string of cases regarding the controversial issue of whether or not obesity amounts to a disability is the decision of the Court of Justice of the European Union in the Danish case Kaltoft v Municipality of Billund.
 
Employers should be aware to begin with that the case does not say that being fat is a disability - organisations are going to have to take matters on a case by case basis and assess each employee individually.
                        
   My Comment:   This merely underlines, nothing should be taken for granted if you anticipate a problem, take advice early on!  read more 

 

Lollipop man sues council for unfair dismissal after calling black colleague "King Kong"   

Jon Seymour, 46, who has helped children cross the road outside Carlton Primary School in Kentish Town for nearly 20 years, was sacked for gross misconduct for the alleged “threatening, racist and abusive” outburst during a row at the town hall.

But he says the dismissal was unfair and is seeking thousands of pounds in compensation claiming he was not being racist because he is also black.
 
My Comment:  I've said this before,  assume nothing,  and don't think you cannot be accused of discrimination just because you are of a similar group.  My wheelchair bound client was accused of disability discrimination !   
 
And finally tonight ! 

.Cyclist crash "joke" tweeter sacked from stockbrokers :
  
A man who tweeted that he had knocked over a cyclist but could not stop because he was "late for work" has been sacked from his job at a stockbrokers.
Cardiff University graduate Rayhan Qadar later told the BBC the message was a "dumb mistake" and he "did not hit anyone".
But his employer Hargreaves Lansdown said the tweet was "unacceptable" and confirmed his dismissal.
Avon and Somerset Police earlier appealed for any victim to call them.
A spokesman for the Bristol-based stockbrokers said one of its employees "failed to conduct themselves to the standards we expect of our staff."
My Comment:     being old,  I'm not a fan of social media,  and this supports my view! 
 


Most employment issues can be sorted, provided action is taken before the problem puts down roots.  Seek advice at an early stage.   Call me if you're not sure about an issue,  it might not even be a problem !
 


Tweet
Forward to Friend
Share
Call Me On 
0779 269 7399
or
01422 229125

Or Connect with me...
Website
Website
Twitter
Twitter
LinkedIn
LinkedIn
Email
Email

Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 267   not allowed to empty & fill a working dogs water bowl in workplace sink !
Enquirer is deaf and has a Hearing Dog who accompanies her into the workplace. First thing in the morning she empties the dog's water bowl and refills it with fresh water using the sink in the kitchen/chill out area which is located nearest to her. She has been told that she can not do this as it's against health and safety and will upset the other employees. She is expected to take the bowl of water into the toilet which is through three doors, two of which are operated by a pass system to dispose of the water and then collect cups of water from the kitchen to fill the bowl at her desk.
 

CASE 125   Cleaners not allowed to wear woolly hats whilst cleaning underground stations
The enquirer is an operations Manager for a company that cleans railway underground stations and he has been told that his cleaners are not allowed to wear woolly hats by the station engagement inspector, who told us it was a health & safety issue.

 




Our grateful thanks to the HSE website for this excellent source material  see them at

 

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

Copyright © 2015 paul murray HR consultant, All rights reserved.
I send this to all my valued clients, colleagues and people I've actually spoken to, if you find this an intrusion, my apologies, please just unsubscribe.

Our mailing address is:
paul murray HR consultant
Waterside Fold
Hebden Bridge, West Yorkshire HX7 8JD
United Kingdom

Add us to your address book


unsubscribe from this list    update subscription preferences 

Monday, 2 February 2015

Cyclist crash 'joke' tweeter sacked from stockbrokers

A man who tweeted that he had knocked over a cyclist but could not stop because he was "late for work" has been sacked from his job at a stockbrokers.

Cardiff University graduate Rayhan Qadar later told the BBC the message was a "dumb mistake" and he "did not hit anyone".
But his employer Hargreaves Lansdown said the tweet was "unacceptable" and confirmed his dismissal.
Avon and Somerset Police earlier appealed for any victim to call them.
'Bad joke'
A spokesman for the Bristol-based stockbrokers said one of its employees "failed to conduct themselves to the standards we expect of our staff."

"Upon becoming aware of this issue we have terminated this person's employment with immediate effect," he added.
Twitter users slated his apparent boast, but only after re-tweeting it and sharing it hundreds of times.
Astronomer Adam Whittaker wrote: "You know what's dumber than leaving the scene? Tweeting it for the world to see. I'll be following your case".
Mr Qadar later sent two more tweets to his 1,323 followers which said his earlier message about the cyclist was "obviously not true".

"I did not hit cyclist. Not today. Not ever. A bad joke on my part it seems.
"Anyone who follows me on Twitter know 99% of the things I tweet is nonsense."
Avon and Somerset Police earlier confirmed it was investigating the claims and appealed for any potential victim to come forward.

My Comment:  being old,  I'm not a fan of social media,  and this supports my view! 

Lollipop man sues council for unfair dismissal after calling black colleague 'King Kong'

A lollipop man suing Camden Council for sacking him after calling a black colleague “King Kong”
today told of his “hell” since the dismissal as his claim entered a second day 
Jon Seymour, 46, who has helped children cross the road outside Carlton Primary School in Kentish Town for nearly 20 years, was sacked for gross misconduct for the alleged “threatening, racist and abusive” outburst during a row at the town hall. But he says the dismissal was unfair and is seeking thousands of pounds in compensation claiming he was not being racist because he is also black.
Outside the Central London Employment Tribunal Mr Seymour told the Standard:
“It’s made my life hell and until now I have never been unemployed in my life. “It was about being part of the community and helping all the mums and children, that’s what I used to love, and that has been taken away, I feel unfairly. The best result would be getting back the job that I love and to feel part of the community again. I just want to serve the people and community I love.”
Yesterday the court heard the spat broke out because Mr Seymour was speaking loudly on his mobile phone in the Town Hall reception area as he waited for a meeting with colleagues. He was trying to arrange a parking refund over the phone after a meter swallowed £4 of change. However, when council worker Johnson Akinmoyede came from a nearby office to ask him to be quieter, the court heard Mr Seymour responded: “Who are you, King Kong? I will break you, move away from me.” He was escorted from the building by two security officers for the alleged “racially abusive and threatening” behaviour.

My Comment: I've said this before,  assume nothing,  and don't think you cannot be accused of discrimination just because you are of a similar group.  My wheelchair bound client was accused of disability discrimination !  

Providing a workplace free from aerosols and perfume was not reasonable

In the recent case of Dyer v London Ambulance NHS Trust, an employee, who worked for the London Ambulance NHS Trust answering 999 calls in a room with other employees and often
members of the public, developed an unusual sensitivity to aerosol sprays.
There were five incidents at work where the employee suffered symptoms similar to anaphylactic shock and was hospitalised.
The last incident was a near death experience. The employee was dismissed on capability grounds and brought a disability discrimination claim for failure to make reasonable adjustments, in failing to prevent the spraying of aerosols or perfumes in the office.
The Employment Appeal Tribunal held that there was no reasonable adjustment that could have been made, as it would not have been possible for such a large organisation to achieve a perfume and aerosol free environment.
This is an example of a situation where no reasonable adjustment could be made. However the Employment Appeal Tribunal commented that it will be rare for such a finding to be made.
Two other cases demonstrate that dismissal is not the only disadvantage that a disabled employee may suffer in redundancy.
In London Borough of Southward v Charles, the employee suffered from a condition where he woke up at night, paralysed, leading to him suffering from depression. He was unable to attend interviews for alternative positions and was made redundant. It was held that the failure to arrange an alternative to an interview was a failure to make a reasonable adjustment.
In Dominique v Toll Global Forwarding Ltd, the employee suffered physical and cognitive impairments following a stroke. The redundancy selection criteria included productivity and accuracy and it was held that failure to make reasonable adjustments to the redundancy criteria led to a lower score which placed the employee at a substantial disadvantage.

Our thanks to HEMELTODAY   for this piece:   read more

How to decide if obesity is a disability

The controversial issue of whether employees need special treatment
The latest and most important of a string of cases regarding the controversial issue of whether or not obesity amounts to a disability is the decision of the Court of Justice of the European Union in the Danish case Kaltoft v Municipality of Billund
Employers should be aware to begin with that the case does not say that being fat is a disability - organisations are going to have to take matters on a case by case basis and assess each employee individually.
Facts
Kaltoft had worked for a children’s nursery for 15 years and was dismissed on the grounds of redundancy. He reportedly weighed 25 stone and satisfied the World Health Organisation’s definition of obesity. He argued that his selection for redundancy was due to his weight.

The Danish court asked the CJEU to specify whether:
  • EU law prohibits discrimination on the grounds of obesity
  • obesity could constitute a disability. 
The EU employment equality directive sets a general framework for equal treatment in employment. It covers matters such as sex, religion, and disability, but doesn’t specifically cover obesity.
Disability discrimination
The European court stated that while non-discrimination was a fundamental right, no EU treaty prohibited discrimination on the grounds of obesity as such.  However, since the definition of ‘disability’ includes a long-term physical, mental or psychological impairment which may hinder an individual’s ‘full and effective participation in professional life’ on an equal basis with others, obesity may amount to a disability if it limits a person’s participation at work.   Furthermore, if the only reason the employee can participate fully at work is because of adaptations made by the employer, the employee could still be regarded as disabled.  The case was referred back to the Danish court to determine if Kaltoft’s obesity fell within this definition of disability.
Case law
The European Advocate General had previously stated in this case that severe or morbid obesity might fall within the definition of disability under EU equality law if it stops an employee’s full participation in their professional life on an equal basis with others.  The decision also sits alongside the Employment Appeal Tribunal judgment in another case, Walker v Sita Information Networking Computing.
The decision in the Kaltof case, which is binding on all EU member states, is seen as controversial in some quarters because some individuals regard obesity as a life choice rather than an illness.  However the Advocate General has been keen to point out that it does not matter whether the obesity is caused by an underlying medical condition or simply the over consumption of food.  The crucial issue is whether or not the employee is in fact suffering from a long term impairment.
  
Checklist
So where does this leave employers?  The first thing to remember is that an obese person is not necessarily disabled.  Although the latest decision indicates that the cause of the obesity is irrelevant, if there is an underlying medical condition contributing to the employee’s weight, it will be easier for the employee concerned to show that they are disabled. If their size causes workers to suffer from diabetes, mobility problems, joint pains and so on, then they are likely to be regarded as disabled and
  • will be protected in law
  • cannot be subjected to a detriment because of their size.
If an employee’s severe weight is a cause of problems at work then employers may have to look at making reasonable adjustments in the same way that they would for any other disabled employee.  On a practical level this may include adjustments such as providing a parking space nearer to the office, adjusting work stations, chairs and desks and so on or re-assigning tasks. When assessing whether or not an employee is disabled, an employer should disregard any adjustments they have already made to accommodate the disability.
Sarah Rushton is an employment partner at Moon Beever
For more employment law articles, visit HR-inform

Claiming Sick Pay Whilst Working Elsewhere

In Brito-Babapulle v Ealing Hospital NHS Trust Ms B was a consultant haematologist at
Ealing Hospital who also saw private patients, with the hospital's knowledge. Whilst her contract did not prevent her from claiming sick pay whilst seeing private patients, she had been warned twice that to do so would constitute fraud.
Despite this warning she saw 11 patients in a six day period whilst signed off sick. After an investigation she was called to a disciplinary panel, being told that these were serious matters which could constitute gross misconduct and might lead to her dismissal. Ms B did not deny seeing the private patients but said she had not understood there was a problem doing this but now did. She also admitted that she had not signed the back of the sick certificates because this would have been fraud. She was dismissed by letter in which she was told that her actions amounted to fraud.
The Tribunal dismissed Ms B's unfair dismissal claim and said that having concluded it was gross misconduct then dismissal was automatically within a band of reasonable responses. As previously reported, the EAT said that this was wrong as it allowed no room for consideration of whether mitigating factors would mean that dismissal was unreasonable and sent the case back to the same Tribunal to consider whether in this particular case, on these facts and with mitigating circumstances such as the effect of dismissal in the NHS, was dismissal within a band of reasonable responses.
However, Ms B's second point of appeal was dismissed, namely that the Tribunal had considered the wrong test and they should have considered whether this was or was not fraud.
The Court of Appeal was persuaded to hear an appeal on this point and concluded that whatever label the employer had given it, it should not be looked at under the microscope. They said that the decision of the employer that this was gross misconduct was clearly one that they were entitled to reach. The Tribunal had not erred in law or applied the wrong tests in coming to this conclusion. The handle attached by the employer was immaterial, the correct tests are those set out in BHS v Burchell namely did they believe her to be guilty of gross misconduct, had they carried out a reasonable investigation and from that did they have evidence to support this belief?
The Court of Appeal went on to say:
'I should note before coming to the grounds of appeal to this court some observations of the Employment Appeal Tribunal at paragraph 37 of their judgment with which I entirely agree:  "The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say that it is an inevitable conclusion.'
Ms B tried to argue that the case of Perry v Imperial College Healthcare NHS Trust, where a midwife with a knee injury who was unable to cycle as she was required to do, but was able to continue with a second job sitting at a desk 100 yards from her home for which she was paid, was not dishonest when continuing to claim sick pay for the first job, helped her in some way. The Court of Appeal pointed out that if a case has not been reported three years after it was decided then there was usually a good reason for this and that the Perry case was entirely fact sensitive.
 
My Comment:  reported cases of this sort often reflect the world of NHS medical staff,   and not so much the more down to earth case of ordinary employees,  eg a mobile care worker, injured her back, but was able to continue as a petrol station cashier at the weekend,  a sitting in a pay kiosk job!