Is your employee moonlighting while on furlough?

The last 12 months have been pretty crazy for a lot of people, with the world turned upside down by the COVID-19 pandemic.

People have lost loved ones and businesses have lost livelihoods, with many forced to close down temporarily and furlough their employees.

Thankfully, the signs of recovery are slowly coming together and businesses are either re-opening or getting ready to. But what if your employee suddenly kicks up a fuss about returning from furlough?

Have they been working a second job all along, potentially breaking the rules of their contract with you?

The rules around furlough and second jobs

Currently, the Coronavirus Job Retention Scheme doesn’t stop a furloughed worker from starting work with a second employer. The government guidelines published on the 4th of April 2020 clearly state that, while a furloughed employee can’t provide any service to their primary employer’s organisation, they can work or volunteer for another company.

So, the government doesn’t prevent someone from picking up a second job when furloughed. However, it could be that doing so breaches their contract with their primary employer.

Should you suspect that an employee of yours is working a second job, and their contract stipulates that they may not do so, then they are in breach of contract and you have a strong case for dismissal.

Even if your contract doesn’t mention working a second job, they could still be breaching the rules of furlough. The Coronavirus Job Retention Scheme specifies that any additional job can’t be for a party that’s connected to the primary employer in any way.

It would be good practice for the employee to discuss any secondary employment with their boss, so they can check there are no links between organisations. If you suspect that your employee is working for a company which has close relations with your own whilst under furlough, this could be a very good reason to investigate.

Should you be found in breach of the Coronavirus Job Retention Scheme rules, you may lose your right to reclaim the wages that have been paid via the scheme and may even find yourself liable to fines.

If you suspect your employee has broken their contact with you, or is breaking the rules around furlough, using a private investigation service to find proof would be a sensible option.

Is working a second job a form of moonlighting?

Moonlighting is a broad term used to describe the practice of working a second job outside of normal business hours. Traditionally it was used to refer to an employee working outside of their regular 9-5 hours in a second job, without their primary employer’s knowledge.

There is nothing illegal about working a second job. In some industries, especially those with variable or seasonal hours of work, it’s well accepted and even encouraged. On the other hand, some companies have policies in place that restrict full-time employees from moonlighting in this way.

Although in theory there is nothing wrong with moonlighting, there are circumstances where it can negatively affect employers. It’s possible that working extra hours elsewhere could leave an employee fatigued, affecting their ability to work. If you have proof that a worker has a second job and think it is impairing their performance in work then this can be cause for disciplinary action, even if working a second job is allowed in their contract.

It could also be the case that they are working for a competitor, possibly giving away confidential information or poaching clients. Again, check their contract if you have you think this could be happening.

When it comes to furloughed employees, this can be frustrating as you could be making the employer contribution to their wages whilst they offer their services to someone else, getting nothing in return.

How can a private investigator help?

If you suspect your employee has been moonlighting with a second job on furlough, there are a number of ways a reliable private investigator can help.

It can be very difficult for an employer to act on suspicions of moonlighting alone. In fact, taking disciplinary action without solid proof could work against you. If your employee feels they are being treated unfairly, and without just cause, you could be faced with legal action, especially if your intention is to terminate their employment.

A private investigator can act as a discreet and neutral third party. They can look into your employee’s behaviour without any emotional attachment. A private investigator has the expertise to do so in a more efficient and professional manner than if you were to try and find these things out on your own. It also means that, should it turn out that your suspicions were wrong and your employee wasn’t moonlighting, they needn’t know and your relationship won’t be affected.

Should you decide to hire a private investigator you will have a comprehensive initial consultation. Each case is different, so a bespoke plan based on an all the available information will be drawn up and fully discussed with you. No action will be taken without your consent.

If necessary, undercover investigations can be carried out. Operatives can discreetly monitor the employees address and observe their activity. This way observations can be made, such as if the client leaving the property in what appear to be work clothes at a regular time every day, that may lead to proof of moonlighting. The employee’s movements can be traced and covertly followed to see if they are travelling to and from a workplace.

Once the investigation is complete, you will be given a detailed investigation report. All logs will be date and time stamped and you will be provided any photographic and video evidence.

If you’re concerned that an employee is now refusing to return to work and think that they might be moonlighting for a competitor in breach of their contract, then give us a call on 01772 334700 to see how we can help you get the evidence you need to take legal action.

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