Employment Law

What if an employee is moonlighting whilst off sick?

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What if an employee is moonlighting whilst off sick?
What is moonlighting?

Moonlighting is when an employee has a second job outside of their regular employment. This term is typically used when referring to ‘secret’ employment that the employee might not want their employer to know about. Although moonlighting is often an issue in and of itself, it may become a bigger issue when the employee goes off sick and you think they are moonlighting during this time. This is more likely to be a problem with long-term sickness as the employee will have been signed off work and have more time to pursue alternative employment or work with financial gain.
As an employer, this is understandably very frustrating and throws up many concerns; number one being that you want your employees to be loyal. What’s more, alternative work-at least in theory – may hinder your employee’s recovery, meaning there is further disruption to your business in the meantime. It also throws into question the point of paying them when they are being paid by another source too. Also, can their sickness absence even be genuine if they are working whilst off?

What should I do if I think an employee is moonlighting?

Investigating here is key. The more evidence you can find to contradict their illness, the better position you will be in to take action. That said, you should ensure any investigation is fair and that evidence that comes to light in the employee’s favour is considered too. Things to consider during your investigation include, (1) whether the employee is working during what their normal working hours would be with you, (2) whether the employee has lied about moonlighting and (3) whether they are being paid by you for the sickness leave being taken. If answered yes, then your investigation is more likely to lead you to the direction of disciplinary action.

What else should I look at?

The other thing you should really look at during the investigation is the reason for the sick leave, and compare this with their moonlighting activities. Is there any reason why they can pursue this specific moonlighting activity, but not work for you? If your employee has a physical condition which prevents them from being on their feet all day which is a requirement of their job- but their moonlighting is desk-based- then the fact of moonlighting alone is unlikely to be good reason for disciplinary action. Here, moonlighting might even be considered as having some therapeutic value, i.e. if they like art-work and produce and sell paintings (provided they are not off work for a hand injury!), especially if they are off as a result of stress. The picture isn’t always straightforward and obvious, hence the importance of a proper investigation.

What should I have in place to prevent moonlighting?

It’s very important to look  at what you have in place that specifically prevents moonlighting whilst an employee is off sick. Is there anything in the employee’s contract on this? Do you have an offence like this listed within your disciplinary policy? If so-and depending on the exact wording as well as what comes out of the disciplinary hearing- this could be treated as a serious offence up to and including dismissal. As previously mentioned, there are general duties that an employee has on loyalty and trust so it may be that this can act as authority in the absence of any specific wording, but your position will be much stronger if you have this covered.
A tribunal has said before that moonlighting cases will be dealt with very seriously and in most cases sympathetically to an employer, but you should get in touch for advice so the specific circumstances can be discussed.

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