Is there anything wrong with moonlighting?

If you’re a female teaching assistant modelling lingerie you could get yourself into trouble. However, if you’re a male lecturer, modelling on the side, you might be alright. Recently, the fate of Gemma Laird, who was fired from a primary school in County Durham, has been compared with Pietro Boselli, a male advanced maths teacher - now an Armani model. Laird, who had only been working as an apprentice for less than a week, was dismissed after a parent found her modelling photographs on Facebook. Apparently, various reasons for the firing were given including fear of damage to reputation and setting the wrong example. According to some reports, Laird stated that the school were aware about her modelling work when she applied for the job – but she was still dismissed.

The key question flying around social media has been: had the teaching assistant been male would the outcome have been any different? There are differences between the two examples. Boselli is, currently, having a break from teaching (although his modelling was known when he was teaching) and he was teaching university students whereas Laird was teaching young children.

So what’s the relevant law on being sacked for moonlighting?

Generally, only employees with two years’ continuous service have the right to bring an unfair dismissal claim. To defend the claim, the employer needs to show a fair reason for the dismissal, and a fair procedure must also have been followed. Supposing an employee is precluded in their contract of employment from working elsewhere, unless they have their employer’s consent? And supposing the employer has a reasonable belief that the employee holds a second job and had not mentioned it? Although it would depend on the circumstances, a dismissal in some cases could be fair – particularly where there was dishonesty. If the employee was working for a competitor in breach of their obligations that could also result in a fair dismissal. Likewise, doing a second job while on sick leave could be considered gross misconduct and justify the sack.

Interestingly, even when the employee has obtained their employer’s agreement to work elsewhere in certain situations the employer may have justification to dismiss, fairly. Damage to reputation, for example, could be a fair reason to dismiss. If the employee’s actions went beyond what was understood and could cause harm to the employer’s standing and reputation (say parents, potentially, taking a dim view of a school) that might justify the employer in dismissing the employee. Alternatively, third party pressure (such as complaints from parents) could be a fair reason to dismiss. The employer would still have to go through a fair process which should include considering alternatives to dismissal.

And, separately, employees have a right not to be discriminated because of sex. There is no length of service requirement to bring the claim. The employee needs to compare themselves to a person of the opposite sex who has been treated differently in similar circumstances. If it’s not possible for the employee to compare themselves to an actual male/female comparator, the employee could make the comparison with a hypothetical male/female comparator.

This brings us back to that key question: whether had the teaching assistant been male would the outcome have been different? Many might argue, yes.

Matt Gingell is a partner at Gannons Solicitors, and specialises in employment law. Read all of his articles at www.mattgingell.com