· 2 min read · Features

Moonlighting: Secondary employment or primary conflict


Whether you are one of the unfortunate many who have seen their disposable income in real terms drop over the last 5 years, because of a lack of pay rises at all or those awarded at below inflation or have had to face reductions in hours and pay you could be encouraged by friends or family to find ways of replacing lost income.

Perhaps part-time work after normal working hours or consultancy work has tempted you. Why not? Why work longer hours for your employer, if you are not going to bag a bonus or pay rise. Put any spare time you have to good use.

So you want to start another job elsewhere and moonlight in your spare time. Tell your employer? What is it to them if you try to make ends meet by supplementing your income after working hours?

Stop and think before you leap. Make sure that you are not about to risk long term job stability for a short term decision to moonlight.

On 9 July Labour Leader Ed Milliband, announced plans to cap his Labour MPs opportunity to generate extra-curricula income way from Parliamentary duties. "The British people expect their MPs to be representing them and the country, not anyone else," he said. Under the proposal, they would be allowed to carry on being paid for communicating their work - making TV appearances, writing newspaper columns and giving lectures. But Mr Miliband wants to curb those receiving "hundreds of thousands" in advisory roles, with earnings outstripping the £66,400 salaries of MPs. Getting MPs to focus on their core roles and not diversify.

Your employer may feel the same way, presenting a work force to customers that is dedicated to the brand of its business. This has to make good commercial sense.

Has your employer included a contractual ban in your terms and conditions of employment that prohibits you from being engaged in any other employment, vocation or profession during your employment? Let alone include a term that says that you must the devote the whole of your time and attention to your job, during working hours? No restrictive covenants that stop you going to work for the competition during or after your employment has ended either? No to all? Moonlight away then!

Problem: you could end up by being threatened with an injunction to stop you working for the competition, when you place yourself in a clear conflict of interest situation between your own interests, those of your primary employer and secondary employer. If you are a Director, forget moonlighting. You have a fiduciary duty not to place your own interests before your Boardroom's interests, which includes protecting the good will of the business including sensitive confidential information from falling into the wrong hands.

Choose your extra-curricula activity wisely, because it could be your first and last experiment in further income generation that fails.

Even if there is no risk of you undermining your employers trade secrets or confidential information, because you start a new venture that has nothing to do with your employer's market, consider your health and welfare. Over-work, particularly through extra hours, could mean that you end up working more than an average of 48 hours per week, which the Working Time Regulations is designed to prevent, unless you sign a statutory opt out, or are working in one of the excluded transport related or other sectors that have their own limits. Your employer has a responsibility to ensure that you are not breaching those hours' limits. If you are too tired for your main job, because you are working extra hours elsewhere, you present a risk of harm to yourself or others. Your employer will need to know that you are not working elsewhere and is entitled to know. If you duck the question and it comes out later, then you will find yourself in difficulty - not just a disciplinary case to answer!

For employers, the above lesson to employees is equally applicable to you. It makes sense to protect your business from unwanted moonlighting. Don't miss the opportunity.

Nick Hobden (pictured) is head of the employment team at Thomson Snell & Passmore