Here at Lincs Law Employment Solicitors, we often assist clients who are facing issues with their employment after starting a second job with a different employer. If you are in this situation, please do not panic. We are specialist employment solicitors, and we are here to help. Please read on to find out more.
Can I Be Disciplined For Starting a Second Job?
The short answer is yes, you can.
Most workplaces will have their own policies in relation to whether an employee can have a second job and, if so, the procedures that must be followed. Such provisions may also be an express term of your contract of employment.
As illustrated below, having a second job may also conflict with implied terms in your contract of employment. These are terms that are not expressly detailed in your contract of employment but are nevertheless agreed between the parties.
Here at Lincs Law Employment Solicitors, we often advise employees who are facing disciplinary action after starting a second job alongside their usual employment. Common examples of how such matters can be deemed as misconduct include:
- It is in breach of a relevant policy or expressed contractual term as above. For example, some employers will prohibit employees from having second jobs at all. Others may allow their employees to have a second job, provided they obtain management approval first.
- A breach of the implied duty of trust and confidence. For example, if your actions have damaged your working relationship with your employer.
- Dishonesty. For example, if you have lied to your employer about having a second job.
- A breach of the implied duty of fidelity. For example, if you are found to have disclosed confidential information, acted in competition with your employer etc.
The possible disciplinary sanction will, ultimately, depend on your personal circumstances and what you have allegedly done. Importantly, however, the above examples can be deemed as gross misconduct.
To explain, there is no set definition of gross misconduct as it often depends on the facts of each individual case and each employer. However, the ACAS Code of Practice on Disciplinaries and Grievances describes acts of gross misconduct as “so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence.”
Can I Be Dismissed For Starting a Second Job?
The short answer is, potentially yes!
If you are found to have wrongly started a second job, your employer could decide that your actions are so serious they constitute gross misconduct and warrant summary dismissal (i.e., without notice). To be clear, this could be the case even if you have a completely clear disciplinary record. Your employer may still consider your actions are sufficiently serious to break the employment relationship.
Alternative to the above, you may already have a live warning or disciplinary sanction on your record. In such circumstances, even if your current actions are not deemed to be gross misconduct, your disciplinary record could unfortunately push any disciplinary sanction to dismissal.
Importantly, you should, however, be afforded the opportunity to appeal your dismissal. For more information about this, please see here – https://lincslaw.co.uk/blog/how-do-i-appeal-my-gross-misconduct-dismissal/
I Have Been Dismissed For Having a Second Job – Do I Have An Employment Tribunal Claim of Unfair Dismissal?
The short answer is, again, potentially yes!
Generally, you need at least two years’ continuous service with your employer to bring a claim of Unfair Dismissal at the Employment Tribunal. There are, however, limited exceptions to this rule. For more information about this, please see our blog here – https://lincslaw.co.uk/blog/unfair-dismissal-less-than-two-years-service/
If you have at least two years’ continuous service with your employer or one of the exceptions (as above) applies, you may have a potential claim for Unfair Dismissal in the Employment Tribunal.
To explain, in a claim of Unfair Dismissal, the burden would be on your employer to prove to the Employment Tribunal that:
- They had a potentially fair reason to dismiss you; and
- In the circumstances, it was reasonable to dismiss you.
I have addressed each of the above points below.
Did Your Employer Have a Potentially Fair Reason To Dismiss You?
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissing an employee. One of those reasons is (mis) conduct.
To rely on this reason, your employer would need to prove that your conduct was, in fact, the reason for your dismissal (for example, that it was not used as a front for a different reason) and that they had a justifiable and genuine belief that you had committed the acts of misconduct.
In The Circumstances, Did Your Employer Act Reasonably in Dismissing You?
Even if your employer can identify a potentially fair reason for your dismissal, this does not necessarily mean the dismissal was, in fact, fair. For a claim of Unfair Dismissal, the Employment Tribunal would then look at the reasonableness of the dismissal. The Employment Tribunal would consider if your employer’s decision to dismiss you falls within the “band of reasonable responses”. Essentially, whether a reasonable employer could have made the same decision.
As part of this consideration, an Employment Tribunal would consider the following:
(i) Did Your Employer Follow a Fair Disciplinary Procedure?
(ii) Was Dismissal A Reasonable Sanction?
(iii) Did Your Employer Act Consistently?
For more information about a claim of Unfair Dismissal, please see our blog here – https://lincslaw.co.uk/blog/can-you-claim-unfair-dismissal-if-you-have-been-sacked-for-gross-misconduct/
Unfair Dismissal – Time Limits
If you have been dismissed from your employment and you wish to pursue a claim in the Employment Tribunal, it is very important you are aware of the relevant time limits.
You must start the Employment Tribunal process within three months (less one day) of the date of your dismissal. You start the Employment Tribunal process by initiating ACAS Early Conciliation. More information about ACAS Early Conciliation can be found here – https://lincslaw.co.uk/blog/acas-early-conciliation-what-is-it-all-about/
Lincs Law Employment Solicitors Can Help You
Here at Lincs Law Employment Solicitors, we regularly advise clients who are facing disciplinary allegations or who have, unfortunately, been dismissed from their employment. We understand that such circumstances can have a devastating effect on you and your family. As specialist employment solicitors, we would be delighted to help you.
If you would like a free consultation with one of the team at Lincs Law Employment Solicitors, please contact us for a free no obligation consultation. Simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.
Kate Key
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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