Moonlighting in Nursing – A Dangerous Game
Nurses frequently work for more than one employer at the same time. The practice of doing, say, agency work during a nurse’s spare time will rarely be objectionable. However, there are a variety of circumstances in which a nurse may face regulatory proceedings if he or she works for multiple employers. This article provides some tips for nurses who are contemplating working for multiple employers or who face ‘moonlighting’ accusations.
‘Conflict Of Interests’ Clauses – Read Your Contract
The starting point when determining what are your rights and duties is your employment contract.
Your employment contract may comprise various documents rather than consist of a single document. These documents may be called a ‘main statement of terms and conditions’, or ‘written particulars of employment’ or a variety of other names.
When you read the contractual documentation, check any ‘conflict of interests’ clause. The issue of what the contract says might be complicated by the presence of policies or procedures recorded in other documentation such as a staff handbook concerning conflicts of interest.
Conflict of interests clauses are usually aimed at protecting an employer’s legitimate interests, for example, by seeking to ensure that a nurse does not work excessive hours by working elsewhere, hence render herself too tired to perform her job safely. The clause may include a reference to the employee being under an obligation in specified circumstances to declare other employment, or even a requirement that the nurse seek prior approval from a line manager before such employment can commence.
However, sometimes clauses use confusing language. One type of clause confers upon the nurse the duty to consider whether she believes there is a conflict of interest between her employment with employer ‘A’ and proposed employment with employer ‘B’. If at her discretion there is a potential conflict of interest, a duty to declare the additional employment arises. Other types of clauses require in all circumstances the employer to be informed of the additional proposed employment and in effect confers a power of veto on employer ‘A’ in the event that employer at its discretion considers that a conflict of interest exists.
Sometimes the contract is silent on the issue of whether and to what extent the nurse has a duty to disclose additional employment. If this is so, there is generally no obligation to declare additional employment, nor any duty to put the interests of the employer before the nurse’s own interests. This is because a nurse’s relationship with her employer is rarely ‘fiduciary’ in nature.
Nonetheless when a contractual duty to disclose additional employment does exist and that duty is not complied with, the Nursing and Midwifery Council (NMC) may charge a nurse with misconduct on the basis of her failure to comply with her contractual duties towards employer ‘A’.
Working For Employer ‘B’ When Absent From Work For Employer ‘A’
As pointed out above, unless the contract prohibits working for other employers or includes a clause requiring disclosure of any such work, there is no basis for accusing a nurse who works elsewhere of misconduct provided always the work elsewhere is done in the nurse’s own time rather than at times when she has a duty to work for employer ‘A’.
However, if work for employer ‘B’ is done at times when a nurse has contractual duties to work for ‘A’ (the classic example of moonlighting), this will probably amount to both gross misconduct entitling employer ‘A’ to dismiss the nurse without notice pay and misconduct before a Nursing and Midwifery Council Fitness to Practise Committee. In NMC proceedings the charge is likely to allege misconduct in two ways: first, a non – disclosure will be alleged to involve a failure (this has the pejorative connotation that the nurse fell short ethically of was required of her by her contract), and nurse’s receipt of pay from employer ‘A’ when working for employer ‘B’ will be identified in the charge as a distinct allegation amounting to misconduct. Second, the NMC is likely to allege that the non – disclosure or receipt of pay from employer ‘A’ was dishonest.
Receipt Of Sick Pay Or Statutory Sick Pay From Employer ‘A’ When Working For Employer ‘B’
It is frequently the case that employer ‘A’ presumes that if a nurse is absent from work due to ill – health and in receipt in sick pay, she has no right to work elsewhere during the period of ill – health. In such circumstances employers may commit the error of dismissing a nurse on the pretext of ‘fraud’ and refer the alleged misconduct to the NMC, which might decide to pursue a charge of dishonesty.
In fact, this presumption is legally unsound in certain legal forums. In the employment law case of Perry v. Imperial College Healthcare NHS Trust UKEAT/0473/10/JOJ (22 July 2011), the Employment Appeal Tribunal rejected such presumptions. It is perfectly feasible 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 employer ‘A’ and pay from employer ‘B’. The relevant factor when deciding whether this is so is likely to be whether duties worked in the two jobs are contrasting and essentially different. However, even if the duties are essentially different it remains the case that a nurse should not work for employer ‘B’ at times when but for her ill – health she would be contractually required to work for employer ‘A’.
Too Tired to Work
A nurse who works multiple shifts may become too tired to complete all of their commitments and, as a consequence, go off sick from one job or another. Taking on too many shifts in one week for multiple employers can get nurses into a lot of trouble if they end up calling in sick, and an employer finds out the reason. Some nurses have been known to do back to back shifts, over many hours and days, so putting their clients at risk. The NMC takes seriously allegations of working too many hours in a week without proper rest periods and may take action.
Nurses who moonlight or take on too many shifts are likely to be in contravention of the NMC Code of Conduct for Nurses. NMC Misconduct Charges could be brought against a nurse who fails to safeguard her clients’ and employers’ interests. The risks of being caught are significant. The case of Perry, above, may be of little value as it the case was an employment law case, rather than a regulatory law case. Many nurses are prosecuted for misconduct each year, by the NMC, for moonlighting activities.The penalties can be grave, including erasure from the register in some circumstances. See our article on Dishonest Nurses for information about how nurses are charged with dishonest conduct in moonlighting cases.
Nurses Defence Service provides legal advice and assistance to nurses who face NMC proceedings, disciplinary proceedings in employment, and employment tribunal proceedings. To discuss your concerns with a qualified lawyer, in strict confidence, call us on: 0800 0122 506
T Oxton, Lawyer
Nurses Defence Service