Breach of Contract and Professionals
The starting point for any professional is to ensure they are familiar with the terms of their contract.
Workers often take second jobs, but this may be a breach of contract. It may be a requirement that a second job has to be declared, therefore, it is always advisable to talk to an employer before contemplating further employment. Working too many hours can lead to fatigue resulting in mistakes being made. An employer must be satisfied that excessive hours are not being taken by an employee working elsewhere.
The case of Lusinga v NMC,  EWHC 1458 (Admin) concerned a nurse who allegedly worked full time for one employer. The written terms of employment, signed by Mr L, stated that he would not without the employer’s written permission undertake other employment.
The employer’s permission could not be unreasonably withheld. Mr L had consented to opt out of the provision in the Working Time Regulations 1998 limiting his working hours to 48 hours per week. His contract did not, therefore, limit the number of hours he could work, nor the number of jobs he could take on (whether in nursing or otherwise) or the number of employers he could work for; it merely gave his “primary” employer a veto over additional work without the written consent of that employer, which could not be unreasonably withheld. Although the contract of employment did not so state expressly, Mr L was obliged to inform his primary employer of any proposed additional employment. Mr L took on another job at a later date without informing his employer. The panel of the NMC found that Mr L had dishonestly concealed the additional employment and struck him off the register, however, this was replaced on appeal by a suspension order.
Working on sick leave may also a dishonest act and possibly a criminal offence as it is presumed that if a worker is unfit through ill health to work for one employer, he/she is also unfit to work for another.
In November 2019 a nurse received a custodial sentence for moonlighting. She was a senior nurse in an NHS hospital but claimed to be sick and worked night duty in a care home.
However, in the case of Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ (22 July 2011) it was held that a nurse might be unfit for work with one employer but fit for work for another employer and so be entitled to receive simultaneously sick pay or statutory sick pay from one employer and pay from another employer.
Other contractual issues have arisen in a regulatory setting for example, police made a referral to the IPCC about a senior member of police staff following an allegation about the procurement of services for their force between 2009 and 2015. This included provision of contracts to a close relative and an allegation that this could have led to direct financial benefit for that relative and the staff member.
A contract might be breached in a number of ways, not limited to those discussed above.
If you are a professional facing allegations breaching a contract, contact Barristers.London without obligation and in strict confidence to discuss our legal advice and representation services. Our fees are competitve.
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