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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 75168
Experience:  Qualified Employment Solicitor
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I had a discectomy back surgery 6 weeks ago. I was signed

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I had a discectomy back surgery 6 weeks ago. I was signed off from work for an initial period of 6 weeks. I have two jobs one is 3 hours per week helping a lady with mental health issues to enable her to leave the house and go for a walk into town. She cannot leave the house alone. This job requires no manual work at all. As walking is very good to aid recovery I feel confident to go back. I also have a job at aldi where I have worked for 17 years. Unfortunately a lot of my back problems were from the manual nature of the job. Particularly when I did night stocking shifts for 3 years. During this time I had an mri which showed multiple problems but my work wasn’t changed to help this. I did take in the mri report but when I finally got a call from what I thought was occupational health the lady said she didn’t understand the terminology on the report and what did I feel I could do. In the end I stopped night shifts. But my back deteriorated further over the next few years to needing this surgery for a herniated disk trapping 4 nerves. While waiting for this surgery I was given till shifts, but they were 10 hours long and were still not ideal and caused pain and discomfort. I went to see the surgeon for a follow up yesterday. He had offered me a not fit for work note for a further 12 weeks, but I explained the two jobs and that I would like to get back to my care job as the lady is really struggling and it would actually benefit me with the walking. He agreed and then ticked the may be fit for work and ammended duties. But he didn’t write anything in the box to clarify what we had discussed. I have to speak to my manager at aldi today and I’m worried that this note will mean I have to go back there now when I’m really worried it could set my healing back and possibly un do the work that has been done. After 15 years of back problems with the worst ever pain I’ve been in last year, I’m very anxious about it. I’m not sure how to go about it, would I be better contacting the surgeon and asking if I could have the full sick note like he offered? Then I’m going to feel awful about the lady I help. Or just see what Aldi want me to do? I did say to the surgeon that I hope I will feel well enough to go back to Aldi before the 12 weeks and do I hope I will. But I think he wanted to make sure I could have the time if needed and said I could return before the 12 weeks if my physio went well and the pain lessened. I also suffer from anxiety and this is sending it through the roof.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Customer: replied 13 days ago.
Hi, thank you. Ask away!

Thank you. What specifically would you like to ask about this please, so that I can best advise?

Customer: replied 13 days ago.
I’m just trying to understand if it’s ok to not be able to do one job but do another. I think initially that’s what I would like to know. Then if I have any problems when I speak to them I would be happy to pay for a call for further advice. Thanks

OK I understand and thank you for providing this information. Please leave it with me for now; I will get back to you with my answer as soon as I can, usually the same day. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Whilst not that common, there are circumstances when an employee can be off sick from one job and receive sick pay, whilst continuing to work in a second job for another employer. Many employers automatically and, often incorrectly, refer to this as the employee 'defrauding' the company and even take disciplinary action, up to and including dismissal.

The legal position was clarified in the case of Perry v Imperial College Healthcare NHS Trust, which confirmed that as long as the employee is genuinely certified unfit to work and this affects their ability to carry out the specific job from which they are signed off, they are able to be off sick from it. In the meantime, if they are capable of performing another job, which is not affected by the reasons for being signed off sick, they can do so without any legal repercussions. The second job should not be undertaken during the hours of the job from which they are signed off, as the employee would then be paid twice for the same hours, which is not allowed.

For example, a worker has two jobs – a daytime job in an office and an evening job in a shop. They are signed off sick from the daytime job due to workplace stress as a result of heavy workload or bullying by colleagues. The stress prevents them from working in that specific job as the stressors are directly connected to it. That does not prevent them from continuing to work in the evening job, which is less stressful and is not affected by the reasons for being off sick from the other role.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 12 days ago.
Thank you so much. That gives me a good understanding of how it works.

You are most welcome. If you have any further questions about this, please do not hesitate to get back to me and I will be happy to help. All the best

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