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Perry v Imperial College Healthcare NHS Trust - Internal appeal could not fairly uphold dismissal on completely different grounds [2011] EAT

If a decision to summarily dismiss is made on completely flawed grounds it will be unfair. An internal appeal is unlikely to be able to rectify that that situation by concluding that it was a completely different form of misconduct that justified the dismissal, especially when no reasonable employer would have concluded that different form of misconduct to warrant dismissal in any event. 

Mrs Perry worked part-time as a community mid-wife for Imperial College Healthcare NHS Trust (ICH). She also worked part-time in a clinic-based post for Ealing PCT. At no time did her hours overlap between these two jobs. Over time, a knee condition meant that travelling became increasingly difficult for her. She went off sick from ICH, but was able to continue working for Ealing: at no point was she drawing sick-pay from ICH for hours she was being paid to work for Ealing. However she did not tell ICH that she was still working for Ealing, and eventually, when ICH found out, it advised her that there was an allegation of fraud against her for being off sick at ICH yet working at Ealing. ICH investigated and moved to a disciplinary hearing.

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