Introduction
A recent decision of the Solicitors Disciplinary Tribunal (SDT) serves as an important reminder that while employees having second jobs is becoming increasingly common, dishonesty about those arrangements can have serious consequences. Matthew Moss was a solicitor who was struck off by the SDT after finding that he had deliberately misled his employer about legal work he was undertaking for a separate organisation. The decision highlights the importance of transparency in the employment relationship and provides useful lessons for employers managing secondary employment in the modern workplace.
Background
Mr Moss was employed by Optimal Solicitors. His contract required him to devote his full attention to the firm and notify the firm of any outside employment. Concerns arose when questions were raised about work he was undertaking for the online legal platform JustAnswer. When asked about the arrangement, Mr Moss told his employer that his brother worked for the platform and that he was merely receiving payments on his brother’s behalf. The SDT found that this explanation was untrue and that Mr Moss had in fact been carrying out the work himself. The Tribunal concluded that Mr Moss had deliberately provided false information to his employer and had attempted to conceal his involvement through a series of misleading explanations. It was particularly critical of the fact that he continued to deny his involvement when directly questioned. Mr Moss accepted that he should be struck off and the SDT agreed, finding that his conduct represented a significant departure from the standards of honesty, integrity and trustworthiness expected of a solicitor.
Why this case is significant
This case is significant because the focus was not simply on the fact that Mr Moss had a second job. Rather, it serves as a reminder that, while second jobs are not inherently a problem, honesty and transparency are fundamental in any employment relationship. Many employees now undertake additional work alongside their primary employment. Whether through freelance work, consultancy arrangements, online platforms or side businesses, secondary employment is increasingly common. The issue in this case was the employee’s lack of candour when questioned about those activities.
What appears to have concerned the Solicitors Disciplinary Tribunal most was not simply the moonlighting itself, but the misrepresentation to his employer about the nature and extent of the work being undertaken. For regulated professionals in particular, honesty and integrity are fundamental obligations. However, the principles arising from this case are equally relevant to employers across all sectors.
The rise of moonlighting
As financial pressures continue and opportunities for flexible work increase, employers are likely to encounter more employees undertaking secondary employment. The growth of online platforms and gig work means moonlighting is becoming more common and policies should reflect that reality.
Employers should consider whether existing contracts and workplace policies adequately address secondary employment and provide clear guidance to employees.
In particular, employers should ensure that employees understand:
- Whether secondary employment is permitted;
- When disclosure is required;
- Whether approval must be obtained before commencing outside work;
- Who is responsible for granting approval; and
- The consequences of failing to comply with those requirements.
Disclosure requirements are not solely about managing conflicts of interest or performance concerns. Employers should also be aware that disclosure of secondary employment can be important for compliance with the Working Time Regulations 1998 (WTR). Where employees undertake additional work, employers may need to consider whether total working hours across all jobs could affect compliance with working time limits and rest break requirements. Even where an employee has opted out of the 48-hour working week, employers should remain mindful of health and safety risks associated with excessive working hours, fatigue and insufficient rest.
Employers should have clear rules on whether secondary employment is allowed. If it is, the rules should also cover requirements to declare secondary employment, explaining when approval is required and who should provide that approval.
Spotting the warning signs
Having a clear policy is only part of the solution. Managers should also be trained to identify situations where outside work may be affecting an employee’s performance or availability.
Managers should also be trained to spot warning signs of moonlighting, such as unexplained drops in performance, fatigue, missed deadlines or sudden requests for random time off. Employers should also be mindful of publicly available information which may indicate that an employee is undertaking additional work. Digital clues such as new profiles or posts on sites such as LinkedIn showing outside projects or titles can also act as a red flag. However, employers should be cautious not to make assumptions. Such indicators may justify further enquiries but should not be treated as evidence of misconduct without proper investigation.
Investigating concerns
Where concerns arise about secondary employment, employers should focus on establishing the facts and giving employees an opportunity to explain. This is particularly important where allegations of dishonesty are involved. Where there are concerns that an employee may have been dishonest about their outside activities, employers should avoid jumping to conclusions.
A fair investigation should consider the employee’s explanation, review the available evidence and assess whether there has been any breach of contract, workplace policies or trust and confidence. A fair investigation remains crucial. The focus should be on gathering evidence, understanding the employee’s explanation and assessing the impact on the employment relationship.
Lessons for employers
This case demonstrates that secondary employment is not necessarily a disciplinary issue in itself. What often causes the greatest concern is a failure to disclose outside work or dishonesty when questioned about it. Employers should review their contracts and policies to ensure they clearly address secondary employment and set out appropriate disclosure requirements. Managers should be trained to recognise potential warning signs and HR teams should ensure any concerns are investigated fairly and objectively. Often it is the dishonesty, rather than the secondary work itself, that becomes the most serious issue and can ultimately justify disciplinary action.
How we can help
For further information or to discuss issues relating to secondary employment, disciplinary investigations or reviewing internal policies, please contact us to speak to a member of our Employment Team.
