A moral question -

A moral question -

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A school secretary has been fired because she had a "second job" as a porn star -

http://www.dailymail.co.uk/news/article-1379100/School-secretary-Samantha-Ardente-outed-porn-star-pupil-strips-again.html

So, the moral question is, what would you do if you discovered that a member of your staff was moonlighting as a porn star, or an escort ?

Would you fire them because some of the other staff became "outraged" ?

Would you give them a pay rise so that they didnt need a second job ?

Would you maybe warn them to register as self employed and offer to do their tax return ?

Or would you be too embarrased to say anything and hope noone else found out ?

Is it really any of your business what staff do in their spare time ?

Replies (21)

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By Steve McQueen
21st Apr 2011 19:27

None of my business...

...but I would mention self emplyment registration and me doing the tax return ;)

Steve

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Sarah Douglas - HouseTree Business Ltd
By sarah douglas
21st Apr 2011 20:29

agree with the above

Hi CD

I suspect everyone is their spare time does things , other staff members do not approve of .  Unless it is losing you trade or effecting a company reputation .  Then I say Live and Live.    I lived across the road from a pub called that, and that what the punters practiced. 

 

-- Kind Regards Sarah@ Douglas Accountancy & Bookkeeping Services, Glasgow

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By Richard Willis
21st Apr 2011 20:33

As with most of these types of case..

the school has brought more 'hatred, ridicule, or contempt' upon itself by their actions than had they done nothing.  It's not as if she was peddling the films at the school gates, although if she had I bet a good few of the dads would be buying; mums too perhaps!

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By cymraeg_draig
21st Apr 2011 23:22

Interesting -

...but I would mention self emplyment registration and me doing the tax return ;)

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Posted by Steve McQueen on Thu, 21/04/2011 - 19:27

 

Interesting, BUT, suppose they were working as an escort and not declaring the income - would you report it ?  I wonder just where the dividing line is between morals, and ethics ?  Would an employer with deep religious convictions view the situation differently to an old cynic like me ?  

Are there any real legal grounds for firing an employee because you "dont approve" of their morals or their "second job" ? 

I know where I draw the line, but I genuinly don't know where others do.

 

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Stepurhan
By stepurhan
22nd Apr 2011 10:30

Only if it affects business

The problem in this case is that her double life became public knowledge. In a school full of [***] teenagers, that is going to lead to disruption when they know what the secretary does out of hours. That is going to affect the smooth running of the school.

If it doesn't affect business then I think what people get up to in their own time is their own business. In all fairness to this school secretary, she did all she could to keep the two worlds apart, in particular by choosing a completely different stage name. If I became aware of something like this, I would at most give a gentle warning that if it became public and that affected business operations or reputation then that would be a problem that could lead to me letting them go. It would then be up to them to mitigate that risk as much as they saw fit.

I think there is someone else that should be up for disciplinary procedures and potential sacking in this story. The mother of the 14 year old that outed the school secretary is a teacher. Her son apparently watches [***] and set up a raunchy Facebook page. There are also the other more serious allegations of blackmail but those are unproven as yet. If her own son is getting up to this sort of behaviour, then perhaps she is not a suitable person to be guiding other young minds.

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By cymraeg_draig
22nd Apr 2011 10:45

@ stepurhan

If I became aware of something like this, I would at most give a gentle warning that if it became public and that affected business operations or reputation then that would be a problem that could lead to me letting them go. tooltip();

 

Posted by stepurhan on Fri, 22/04/2011 - 10:30

 

That might sound reasonable - but legally you could be walking into a minefield of unfair dismissal claims. The fact that someone's "second job" leads to adverse publicity over which they have no control doesnt in my view fall under the heading of "misconduct", so on what grounds could they be dismissed.  

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Image is of a pin up style woman in a red dress with some of her skirt caught in the filing cabinet. She looks surprised.
By Monsoon
22nd Apr 2011 15:00

Easy in theory, but i am not good at 'what ifs'
In theory, i would like to say that as long as my staff are competent and professional while at work, then what they do in their private life is none of my business. I like to think I'm pretty open minded about things like prostitution. What i would actually do if confronted with a situation where a member of staff was outed as an escort, local newspaper coverage and clients leaving... I'd like to think I would stand by my staff member and take the stance that if people are going to be small minded, i don't want their custom anyway, but until you're in that situation (and especially if it was affecting business) then it's impossible to say how i would react from an employers perspective.

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Stepurhan
By stepurhan
22nd Apr 2011 17:01

A minefield indeed.

That might sound reasonable - but legally you could be walking into a minefield of unfair dismissal claims. The fact that someone's "second job" leads to adverse publicity over which they have no control doesnt in my view fall under the heading of "misconduct", so on what grounds could they be dismissed.  

 

Posted by cymraeg_draig on Fri, 22/04/2011 - 10:45

As you say, quite a minefield. Would it make a difference if the contract had a clause that reserved the right to dismissal for conduct "likely to bring the firm into disrepute"? Would such a contract term even be legal? Even if it was, would this mean you could not turn a blind eye to the conduct when it was still a private matter? After all, it would be the conduct itself that would be "likely to bring the firm into disrepute". It actually becoming public would simply be the trigger that actually affected the firm's standing.

I am put in mind of the requirement of auditors to not only be independent, but to be seen to be independent. Should any job require private behaviour commensurate with the trust and image required for the working role?

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By cymraeg_draig
22nd Apr 2011 18:28

Stepurhan - have you thought this through ?

Would it make a difference if the contract had a clause that reserved the right to dismissal for conduct "likely to bring the firm into disrepute"? Would such a contract term even be legal?

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Posted by stepurhan on Fri, 22/04/2011 - 17:01

 

I'm not sure that it would be legal. Like any restrictive covenant the test would be if it was reasonable.  I suspect a court would consider it perfectly reasonable for me to enforce a restrictive covenant forbidding my staff from working for a competitor at weekends. There is an obvious reason.  

However, a covenant restricting staff from pursuing any other secondary employment would not be seen as reasonable.

I believe that you would have to show that not only did the secondary job directly affect your business, but also that the employee knew that it would have a detrimental effect on your business. I'm not convinced that a secretary or receptionist making [***] films in her spare time actually fulfills that test as in itself her activity is not detrimental to the business.  Indeed (being terribly sexist) having a sexy good looking receptionist could be a distinct advantage :)  

In the case of the school secretary it is clear that the real motivation behind her dismissal is the moral judgements made by parents - and those in my view are not reasons which fulfil the test of reasonableness.

 

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I am put in mind of the requirement of auditors to not only be independent, but to be seen to be independent. Should any job require private behaviour commensurate with the trust and image required for the working role?

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Posted by stepurhan on Fri, 22/04/2011 - 17:01

 

I'm just wondering what private behaviour is comensurate with the "image" of an accountant, and indeed if that "image" has any resemblance to the truth.  

So an auditor who plays football for his local team and kicks lumps out of their opponents, or swears at the referee, should be fired ?  An accountant who likes a few pints on a Saturday night should be fired ?

Certainly an accountant who races motorbikes and dresses in leathers and swears like a trooper when a race doesnt go well, should be fired ?  Guess I should have sacked myself years ago :)

 

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Stepurhan
By stepurhan
23rd Apr 2011 14:15

Speaking hypothetically

The contract clause was a hyptothetical one, though your legal view on the matter is interesting. I personally would not feel comfortable with such a restriction, even if legal, precisely because it would be interfering with a person's private life. The fact that it would seem to interfere with a person's private life, even if that was not affecting the firm, would make it a big no-no for me.

My point about auditors was not to say auditors need to behave with especial probity in their private life, but that in business they have to take care, even when they personally know there is no problem. A true professional should be able to audit a client that makes up a huge part of their fee base in the same way as any other client. They don't because it would look like they could be put under pressure by the threat of losing the large fees.

So do we think there are situations where similar principles apply to someone being able to continue in a particular role when there are apparent conflicts in their private life? Going back to my point about the teacher whose son seems to have created this issue. The behaviour of her son and any influence she has on that should be a private matter. However, the fact her son's behaviour appears to be out of control implies she may also have trouble managing the behaviour of others of a similar age. Does this therefore make her unsuitable to be in a teaching position with pupils of that age? Does her son's behaviour being made public rob her of the authority she needs to do her job effectively?

Taking another hypothetical situation, say there was a works dinner and some of those attending went to a pub for more drinks afterwards. A fight breaks out involving some of those out for drinks, though they are let off with a warning. Private matter because it was outside the office or business matter because it was "works" drinks?

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By Richard Willis
26th Apr 2011 07:52

Some years ago

a young employee was sacked because he was 'looking after' the MD's wife while he was (often) away on business.  As this was outside company hours I wonder whether even this would stack up now!

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By cymraeg_draig
26th Apr 2011 08:56

Richard

In the circumstances you describe there would be a good claim for unfair dismisal, however, the tribunal would almost certainly consider that the employee had contributed to his own dismisal and would reduce any award accordingly.

Whether such a decision could be justified on appeal would be interesting as, as far as I am aware, knocking off the bosses wife is not covered by employment legislation and, indeed, is not an "offence" of any sort. 

 

 

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By cathygrimmer
26th Apr 2011 11:02

Not so hypothetical!

Stephuran's hypothetical situation reminds me of a real incident at the Christmas dinner of a firm for whom I used to work. The partner in charge of the office used to deliberately try to wind the staff up - it seemed to amuse him for some reason. On this occasion he was rather too succesful as the latest tax staff recruit ( a young man) decked him! The lad was sacked (even though it was outside of office hours) but the rest of the staff thought he should have been given a medal - he did what we'd all been wanting to do for years!

Cathy

[email protected]

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By thisistibi
26th Apr 2011 13:09

Contractual point

Coming back to the contractual point.... I've previously been under an employment contract that required me to seek approval for doing a second job.  I can't recall precisely how the clause in my contract was written, but it didn't - and still doesn't - seem an unreasonable contract term to me.

Obtaining a second job without permission presumably brings you in breach of the contract.  So maybe that's a more elegant solution which is actually exercised by some employers....

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By cymraeg_draig
26th Apr 2011 14:58

.

I've previously been under an employment contract that required me to seek approval for doing a second job. I can't recall precisely how the clause in my contract was written, but it didn't - and still doesn't - seem an unreasonable contract term to me.

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Posted by thisistibi on Tue, 26/04/2011 - 13:09

 

I take an entirely opposite view - it's an unenforceable contract term which is tantamount to slavery.

A contract of employment cover say 8 hours a day. During those 8 hours you are paid £x/hour by the employer, and, in return, he is entitled to your labour.  However, the instant he stops paying you at 5pm what you do is absolutely none of his business. If he wants to pay you for 24 hours a day 7 days a week then he is entitled to dictate what you do (ignoring the working time directive for the moment), BUT, if he's not actually paying you for that specific time then it is none of his business what you do.

Obviously, should you arrive for work unfit to do your job through drink, drugs, tiredness or whatever, then he has reason to act - but only then, and only with regard to your being unfit to carry out your duties. Even then what you did during your own time to get into that condition is still none of his business.

 

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By thisistibi
26th Apr 2011 15:12

Hmm

But the contract also said that I would be required to perform additional hours work from time to time in order to perform my duties - unpaid.  So in my case, having a second job could have interfered with the ordinary performance of the employment contract.

Presumably if additional hours may sometimes be required (either paid or unpaid) then that means you have established your rationale for requiring permission for a second job.

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By ShirleyM
26th Apr 2011 15:23

Doesn't it depend on your job?

Many employers who use drivers can have quite strict requirements, ie. zero tolerance to alcohol and often make random breathalyzer spot checks. This obviously inhibits drivers from drinking in the evening (their own private time) before working the next day. This is part of their employment contract and if they are suspected of having alcohol, or drugs, in their system then they are not permitted to drive.

Also, long distance drivers have strict regulations about rest periods and maximum hours per day. If they were moonlighting on an evening then the employer would be severely disadvantaged, and may unwittingly break working time directives.

It's the same old story, one rule doesn't fit all circumstances, and there are many shades of grey.

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By taylorag
26th Apr 2011 20:58

"Looking after" the bosses wife

Richard,

Apparently a CIMA student once answered a law paper question on implied duties with the statement that "not sleeping with the bosses wife" was an implied contractual term.

If true, then it is a sacking offence!

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By cymraeg_draig
26th Apr 2011 22:46

.

But the contract also said that I would be required to perform additional hours work from time to time in order to perform my duties - unpaid.

 

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Posted by thisistibi on Tue, 26/04/2011 - 15:12

 

I wonder how many firms will have to be slapped down for putting this rubbish in their contracts before they get the message?  It is illegal to require unpaid work to be carried out, and it breaches EU legislation. Companies arrogantly or ignorantly continue to include such nonesense in contracts, and tribunals and courts continue to tell them they are unenforceable. 

Even at a very basic level they are unenforceable as the whole essence of any contract is that it is 2 sided, ie one side gives something (in this case time & labour) and in return receives aconsideration from the other side (ie pay).  A contract where one side gives, and the other side does not, is incapable of being constued as a contract - and is therefore a meaningless piece of paper. 

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This is part of their employment contract and if they are suspected of having alcohol, or drugs, in their system then they are not permitted to drive.

Also, long distance drivers have strict regulations about rest periods and maximum hours per day. If they were moonlighting on an evening then the employer would be severely disadvantaged, and may unwittingly break working time directives.

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Posted by ShirleyM on Tue, 26/04/2011 - 15:23

 

As I stated, so long as they are fit to work - ie free from drugs or drink, at the start of their shift then what they did before starting work is none of the employers business. 

As regards your second point, the employer does not commit an offence (I've encountered this sitiation more than once), it is the driver who is responsible for hours driven and the driver who commits the offence, not his employer.  An employer would only find himself in difficulties if several of his drivers are caught breaching the regulations, and, if they all claim they were forced or coerced by the employer into excessive driving hours.

These regulations relate to individual drivers, not to their employers.

 

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By thisistibi
27th Apr 2011 08:33

What EU law?

What EU law do you think additional unpaid working hours are in breach of?  As far as I'm aware, it's perfectly legal provided the Working Time Directive is not breached (which in the UK, can be opted out of anyway).

You assume that all employment contracts should boil down to performance of certain hours of work.  That attitude lends itself to underperformance in the workplace, where employees are watching the clock waiting for 5pm to arrive.  I think employees should be measured on performance, and that it how I like to be measured.  If I get my head down and get all my work completed by 4pm, then I should be able to leave early.  But if I'm up against a deadline I'll happily work late.  It's related to something which is rare these days - taking pride in your work.

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By cymraeg_draig
27th Apr 2011 10:01

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What EU law do you think additional unpaid working hours are in breach of? As far as I'm aware, it's perfectly legal provided the Working Time Directive is not breached (which in the UK, can be opted out of anyway).

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Posted by thisistibi on Wed, 27/04/2011 - 08:33

 

 

Article 4: Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

Article 8: Right to privacy

1. Everyone has the right for his private and family life, his home and his correspondence.

 

Incidently I don't "think" compulsary unpaid work breaches EU legislation - I "know" it breaches it, and has repeatedly been ruled by tribunals and courts to do so.

If you wish voluntarily to work unpaid that is fine, but it is illegal to make it a contractual requirement.  A contract is an ageement between two parties with mutual obligations. A term which places a requirement on one party with no consideration from the other does not constitute a legal contract.

 

 

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