Dishonesty and fraud: teacher who phoned in sick to work at a different school banned from teaching

In David Aves: professional conduct outcome, the Secretary of State had to consider whether a teacher who phoned in sick in order to work for another school (and obtain a second income) should be banned from teaching.  

We explore this case and consider what steps schools and colleges can take if they suspect a staff member of moonlighting.  

Facts

On 10 January 2023, Mr Aves, a music teacher, sent an email to his school (Beccles School) saying he was too unwell to work. His email explained “I tested positive for Covid last night and this morning. I'm hoping it's only a mild case but nevertheless will need to isolate for 5 days as a precaution.”

He sent another email on 18 January 2023 which said, “I'm still testing positive and still feeling rough, mainly coughing and chest complications…I will collect a medical certificate from GP today as it is ready for collection and will forward on to you.”

Mr Aves provided a medical certificate covering 31 January to 28 February 2023. 

However, it was alleged that while off sick, he worked at another school, Pakefield High School, on 10, 12, and 13 January 2023. Furthermore, Mr Aves allegedly gave a letter to the recruitment agency that arranged his work at Pakefield, purportedly from a senior member of staff at Beccles School. The letter stated that he was not employed at Beccles as of 1 January 2023. 

A professional conduct panel (PCP) was convened to consider whether these allegations were proven and if so, if his actions were dishonest and/or lacked integrity. 

Professional conduct panel

The panel heard from a witness that Mr Aves worked at Pakefield High School on 10, 12, and 13 January 2023, under a short-term contract arranged by a recruitment agency. The contract was due to run between 10 January and 31 March 2023. Attendance records from Pakefield and the agency booking sheet confirmed his presence on those dates. Additionally, the panel heard from the senior staff member at Beccles School that she did not write the letter Mr Aves provided to the agency. 

The panel reviewed the Teachers' Standards which in the preamble states that “teachers act with honesty and integrity” and it considered the following standard:

• Teachers must have proper and professional regard for the ethos, policies and practices of the school in which they teach and maintain high standards in their own attendance and punctuality. 

The panel determined that Mr Aves' actions were dishonest and lacked integrity. It concluded his actions were deliberate and financially motivated. He'd received his full salary from Beccles School while at the same time being paid as a supply teacher at a different school. Mr Aves lied to his employer, the agency, and Pakefield. The panel also noted that he'd breached a term of his employment contract which prevented him from working elswhere during his engagement at Beccles school.   

The panel considered the offences listed in the Teacher Misconduct: The Prohibition of Teachers and, in particular, the issue of fraud and serious dishonesty. It was satisfied that Mr Aves' conduct amounted to misconduct of a serious nature falling significantly short of the standards expected of the profession and that his behaviour could have brought the profession into disrepute. 

The panel had to then decide whether to recommend to the Secretary of State that Mr Aves should be subject to a prohibition order preventing him from teaching. It had to consider if this would be an appropriate and proportionate measure, and whether it would be in the public interest to do so. 

The panel considered that the adverse public interest considerations outweighed any interest in retaining Mr Aves in the profession, since his behaviour fundamentally breached the standards of conduct expected of a teacher. It concluded that a prohibition order was both proportionate and appropriate. The panel were significantly influenced by Mr Aves' dishonest and unethical conduct. However, given his actions occurred over a short period of time and there was no evidence his conduct was repeated, it recommended reviewing the prohibition order in three years. 

The Secretary of State agreed with the panel. 

Key points to note for schools and colleges

If you have evidence that an employee who called in sick is working elsewhere, there are several points to consider:

• Are they working elsewhere during the hours they should have been working for you? If they are, depending on the specifics of the case and the evidence, this is likely to amount to gross misconduct.  
• If they are working elsewhere outside their normal working hours, you will still need to explore what they are doing and whether this conflicts with what they have told you about their ill-health. It's also worth checking what their contract of employment says about them getting a second job.

Perry v Imperial College Healthcare NHS Trust highlights that an employee can be signed off sick from one employer but still work for another one. Ms Perry, a community midwife for Imperial was signed off work, which involved cycling to patients and climbing stairs, because of a knee condition but she continued her desk-based second job at another NHS Trust which she performed outside of her contractual hours with Imperial. The EAT found that Imperial wrongly held that this was ‘fraud’.

The employee's contract of employment may say that they can't work elsewhere, or it may state that an employee needs their employer's consent to do so. It's likely to be a disciplinary matter if they are in breach of their contractual terms.

If you allow your staff to work for other people, you need to know how many hours they are undertaking because both jobs count towards the maximum number of hours worked under the Working Time Regulations 1998. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.