WFH employee breach of contract? To dismiss or not to dismiss…

January 12, 2022
Mini Setty


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With UK workers advised to Work From Home (WFH) where possible due to the Omicron phase of the pandemic, some businesses will again struggle to have visibility over employee activity.

With financial pressures following Christmas and cost of living increases, some individuals may be tempted to use this opportunity to take on additional paid work or ‘side hustle’.

gunnercooke Employment Law partner, Mini Setty, looks at multi-employment and how organisations can protect themselves, whilst also safeguarding their employee’s wellbeing.

“The pandemic has caused a seismic shift in the way we live and work, posing many potential legal challenges for HR managers and employers.

“Some employers are not fully aware of employee activity and true productivity due to a lack of suitable systems and processes being in place such as timesheets or regular, structured engagement.

“There’s increasing concern amongst some that employees may have taken on other paid work without prior employer consent. In many cases this is a breach of contract, can impact performance and puts the employee at risk of burnout.

“This can be a very sensitive issue and must be approached as such.

“There is an argument to dismiss any employee in this situation and you’d likely be well within your legal right to do so, but it’s worth pausing to consider whether dismissal is the right approach.

“The new year is often a time when people are reflective and it certainly pays for businesses to do the same.

“Look at your working conditions and rate of pay – is this in-line with modern expectations and your knowledge of what competitors offer?

“The battle for talent is in full flow and in some cases, dismissal on these grounds can be expensive and impactful from resource, recruitment and reputational perspectives.

“If an employee is particularly valued, then it may be worth engaging with them to gauge the reasons why they feel the need to take on additional work. You might be able to find a resolution between both parties and implement processes that can help rebuild trust. Compassion and loyalty can go a long way.

“Are there financial pressures at home due to new family care commitments? Is the increased cost of living having a negative effect on household income? There may be things where you can signpost for further support and refer on to charities such as Citizens Advice.

“But if you feel the rationale and breach of contract has undermined trust, damaged the relationship and the role can be backfilled, it may be that dismissal is the only option. Ultimately there is only so much support you can offer.                                                                                       

“Whatever the individual circumstance, legal advice is always a must because there are instances where unfair dismissal cases are brought against employers, where employment contracts or working conditions and practices are challenged in return.”

If you have any specific concerns relating to an employee’s conduct or employee rights, then contact Mini Setty here.