With the cost of living rising and insecurity in the jobs market, more people are taking on side hustles to increase their income. Almost one in five people in the UK have an additional job, according to Scottish Widows research. However, those taking on secondary employment can create challenges for HR, particularly if staff are conducting extra work while they are unable to perform their primary role.
This issue came to the fore at two recent tribunal hearings. One involved Metropolitan Police officer Stanley Kennett who was sacked for moonlighting as a barista at a bike shop.
Kennett had attempted to register his work as a business interest while suspended from duty in April 2024 but his request was refused. Despite this, he continued running and promoting the company on social media for several months while still receiving his full salary.
Commander Andy Brittain, who chaired the misconduct hearing panel, said it was “not simply a volunteering opportunity” but a “full-blown and expanding business”. The decision to dismiss Kennett without notice was upheld.
Jeremy Coy, senior employment associate at law firm Russell-Cooke, explains that Kennett’s decision to work a second job could be considered a breach of an employee’s duty of fidelity. This is a basic legal principle that requires workers to act in their employer’s best interests and not do anything that could harm the business. “The employee’s duties, other than to attend or carry out work, will not usually be affected by suspension,” says Coy.
“The continuing duty of fidelity means that the employee has to be ready and willing to work and will not have the right to work for anyone else if their contract prevents this. To do so may amount to a disciplinary offence.”
From police officer to pizza maker
A second Metropolitan Police officer, Matt Skelt, was sacked for moonlighting after he was found to be running a mobile pizza business while on sick leave. Skelt’s actions were considered a breach of orders and he was dismissed without notice for gross and discreditable conduct.
When an employee is off sick, the tribunal has to decide whether the other work they are doing conflicts with the reason they are signed off.
Whether running a business while on leave is gross misconduct depends on specific circumstances, according to Claire Brook, employment law partner at Aaron & Partners. “An employee who is medically unfit for one role may still be capable of undertaking different, less demanding activities. However, where there is evidence of deliberate concealment or misrepresentation, the issue can escalate,” she says.
During the misconduct hearings, the Metropolitan Police stressed that taking on unauthorised business interests risked undermining public trust and organisational discipline.
When does a side hustle cross the line?
Dishonesty and concealment are often the deciding factors in determining whether an employee’s second job should constitute gross misconduct. Katie Garcia, associate law firm Birketts, says employers will need to show clear evidence that an employee was intentionally claiming sick pay while fit to work.
Helen Burgess, employment partner at legal services company Gateley, adds: “While an employer may expect an employee on long-term sick leave to be somewhat active on a day-to-day basis, they would naturally be shocked to hear that they are working a second job while signed off.”
While this may encourage some employers to closely monitor staff who are suspended or on long-term sick leave, this is rarely an effective strategy. In an employment tribunal last year, German car manufacturer BMW was deemed to have unfairly dismissed a worker with back pain after spying on them during sick leave.
Instead, HR is advised to set clear rules around moonlighting. Fostering a culture of trust can also encourage employees to disclose any side hustles to their employer.
“Employees should understand what requires approval, what is automatically prohibited and what is generally acceptable,” says Doug Betts, founder of consultancy Sure Betts HR Solutions. “The emphasis should be on managing risks, rather than controlling personal lives.”
If managed correctly, side hustles can also have a positive impact on the workplace. According to Claire Bullen-Foster, a clinical psychologist, passion projects can boost employee motivation and prevent burnout if managed correctly. “Fostering an open culture around side projects is important, helping employers and employees maximise potential benefits while managing any risks to performance,” she adds.
The goal for HR is not to catch employees out, but to create an open culture where outside interests are disclosed rather than hidden.