Why a ‘bit on the side’ could cause some problems for employers - Euan Bruce

Euan Bruce is a lawyer in DLA Piper’s Employment practice in Scotland

We live in the age of the so-called “side-hustle”. Consequently, employers must get to grips with a workforce that is more flexible than ever. For some workers that includes a separate vocation running alongside their day-job. For many individuals performing at this year’s Edinburgh Fringe Festival for example, this second career represents a glamorous opportunity to break into showbiz and leave ordinary life behind.

Whether glamorous or not, when an individual is expected to fulfil a full-time role with a company and is rewarded accordingly, undertaking an additional side career can have an adverse impact on the role they are employed to do. Therefore, employers should be mindful of their employees’ obligations to them.

Primarily, employers should ensure that workers’ additional activities don't conflict with the company’s interests. For those aspiring Fringe stars, conflicts are unlikely to arise. However, there may be some individuals whose activities could conflict, and the fact that they have been given additional flexibility to carry out their work shouldn’t be used as an opportunity to moonlight their services elsewhere.

A worker’s behaviour could also jeopardise their employer’s reputation. When an individual works for the company alone, the risk is relatively low but if they are offering services to the public or putting themselves in the public eye, the risk increases. An ill-judged impression or a risqué joke from a budding Fringe comedian could easily go viral, causing online sleuths to link the individual to their employer, dragging the company into any resulting controversy.

Employers must also consider the Working Time Regulations, which provide employees with adequate time off for rest and recuperation. If this time is instead used to pursue a second career, the lack of respite could negatively impact the individual’s health and productivity.

When considering the issues, many employers may feel that the risks of accommodating additional out-of-work activities exceed the benefits. However, many employees today seek flexibility and could pursue alternative employment opportunities if flexibility is restricted. It is crucial therefore that employers clearly communicate their expectations.

The contract of employment should enshrine all of the key terms of the relationship between employer and worker. If a company wants control over an employee’s ability to work elsewhere then this should be well-defined within the contract. This doesn’t have to be an absolute restriction but should give the company the right to approve any proposed activities and allow for periodic review.

An employer with a more open-minded approach should still incorporate control measures within the employment contract. Additionally, a policy can supplement the contract with guidelines and a fair approval process. Maintaining consistency in addressing such requests is key to avoid discrimination claims alleging less favourable treatment due to race, age, gender, disability, and other factors.

Hopefully, the Fringe’s cast of stellar performers won’t generate any employment headaches. Nevertheless, greater flexibility for individuals means that employers need to be prepared should issues arise.

Euan Bruce is a lawyer in DLA Piper’s Employment practice in Scotland