Few employers will have missed the recent story of the two Northumberland County Council highways department employees who, while they were supposed to be on sick leave, turned up to lay a patio at the home of the council's leader.

As a result, both were dismissed for gross misconduct. They are understood to be appealing.

The two workers were held to have misused a council vehicle and also to have breached the council's code of conduct.

There was no suggestion that the council leader had any idea who the men were - it being simply an unhappy (for them) coincidence that they were hired by their boss's wife.

This type of moonlighting appears at first glance to be obvious gross misconduct, and usually it is.

If an employee indicates that he is too ill to come to work, but then by his conduct demonstrates that that indication was clearly untrue, then the overwhelming inference is that when he said he was too ill to come to work he was not telling the truth.

Dishonesty will amount to gross misconduct for virtually all employers.

The fairness of the employer's investigatory and disciplinary procedures is of paramount importance in cases of this nature.

Fail to give the employee the opportunity of explaining his actions before dismissing him and pay the price later - it is all too easy for the employee to argue subsequently that "it was a one-off", "I was just helping out a mate" or "I was there to supervise and wasn't going to be doing any heavy work".

A person employed in a sedentary role and off with, say, stress or depression, may argue that his doctor had advised him to get out and take some exercise.

It will also be relevant whether the employee is getting sick pay, and/or whether his contract of employment contains a specific duty to obtain his employer's consent to his taking a second job.

Employees need to be instructed in clear terms as to their duties and obligations while on sick leave, and the consequences of failing to comply with them. The greater the clarity the easier it will be to manage these potentially difficult situations.

- Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 09/05/2006