Everyone wants a little more money, so it comes as no surprise that we are periodically asked to advise on cases where employees are “moonlighting”. It might be the production operative who puts in a few shifts at the local garage, the car salesman who does the odd bit of carpentry or even the employment lawyer who performs the occasional wedding ceremony. Apparently.
The news last week that a teacher faced a General Teaching Council disciplinary hearing for moonlighting as porn star and male stripper Johnny Anglais raises questions about the extent to which an employee’s activities outside his day job can legitimately be used by employers as grounds for disciplinary action.
According to newspaper and online reports, Benedict Garrett ran in his own time a website containing details of his work as a stripper. He was suspended from his role after pupils found it and discovered his dual identity. We shall draw a veil over what precisely they were looking for at the time. Astonishingly, although the GTC found Mr Garrett guilty of unacceptable professional conduct, it did not strike him off the national teaching register. He had already resigned from his school position.
While some of the considerations in this particular case inevitably related to the unique position of authority and responsibility that teachers occupy in relation to their pupils, the mixed public reaction to the story neatly demonstrates the more general tensions an employer has to manage when it comes to actual or suspected “moonlighting”. Predictably, some of the comments online are to the effect that “What he does in his own time is his own business”, while others are adamant that “If he wants to be a [stripper], he should give up teaching”.
So what is the legal position when it comes to moonlighting?
In general, employees are free to do what they want with their spare time, as long as it does not interfere with or damage their employer’s legitimate interests. However, if an employee’s work on the side is directly damaging to the employer’s interests, or creates a risk of serious harm, it may in some cases constitute misconduct and even merit dismissal. This might be a possibility where, for example, an employee has access to an employer’s trade secrets or other sensitive commercial information and there is a risk he will use it to benefit a competitor. Where there is a genuine conflict of interest, whether commercial or reputational, an employer will usually be able to justify taking some action.
Happily for employers, it is possible to clarify an employee’s obligations by including an express clause in his contract of employment dealing with the issue of other jobs. In general, this will make it much harder for an employee to argue that he should be entitled to take up another role. As always, it will be necessary to carry out a proper investigation to establish the facts before taking any disciplinary action and employers are expected to act reasonably, even where an express contractual term has been breached.
