If I wasn’t a solicitor, I like to think I would be an actress. The great thing is that I can let my creative juices flow and pretend to be an actress in my own time in the evenings and at weekends (as part of a local theatre, the Crescent - not in my living room).

I don’t make any money for myself from my amateur dramatic exploits, but lots of people, having found new hobbies and passions during lockdown, are turning their outside-of-work hobbies into cash. The popularity of the so-called side hustle has grown in recent years. Sadly, some people are running their side hustles out of need rather than choice, due to the cost of living crisis necessitating additional sources of income.  

This can create lots of questions and potentially, tensions, for employers:

• Do you allow employees to have side hustles?
• Are they permitted to work elsewhere, either on a self-employed or employed basis?
• Are they permitted to use company equipment and resources for their side hustle?
• What are they allowed to post on social media about it? Are there do’s and don’ts?
• If an employee is signed off sick from work, are they allowed to still carry out their side hustle during their sick leave?

The last question has been considered in the recent employment tribunal decision of Lindsay v Halifax Bank of Scotland. The tribunal has found that Ms Lindsay was constructively and unfairly dismissed by Halifax.

The crux of the case was that Ms Lindsay, who suffers from post-traumatic stress disorder, was on sick leave due to severe anxiety. It was known by her manager that Ms Lindsay suffered from panic attacks. Despite the company agreeing not to contact Ms Lindsay before a certain date, her manager regularly called her during her sick leave.

Whilst on sick leave, Ms Lindsay posted photos of her cake-making business on social media. The evidence was that Halifax had already approved this side business. Ms Lindsay’s manager called her and told her she should be mindful of what her fellow employees would think of the cake posts. The call led Ms Lindsay to have a panic attack in front of her two children whilst on holiday with them. Ms Lindsay resigned and claimed constructive unfair dismissal.

There are lots of things that the Tribunal criticised Halifax for in its judgment, including that during one call, the line manager questioned Ms Lindsay's medication and suggested she review it in addition to the care her doctors provided.

I think all employers should let this decision be a reminder of the following:

• An employee may be signed off as unfit for work by their GP, but still be able to do other forms of work/hobbies/activities. Indeed, GPs may encourage an employee to do so, as a way to help them through mental health difficulties. An employee can be unfit for work and fit for their side hustle at the same time.
• If you have concerns that someone is malingering, you should tread very carefully. This is a serious allegation of dishonesty so should not be made without good cause (i.e. some level of credible evidence).
• You should be clear as to what is and is not allowed regarding side hustles in your policies and procedures.
• Managers and HR should be sensitive to how they keep in touch with employees on sick leave, taking into account the employee’s health condition and should also take a supportive and trusting approach to those discussions. If parameters for contact are set, both parties should stick to those. Think about whether a conversation is urgent or whether it can wait and whether it should take place via phone, video or face-to-face.

If you do have employees who you know are working elsewhere or are making money via a side hustle, now might be a good time to think about the above questions and ask whether your organisation’s policies and procedures are up to date.

If you would like any specific advice on this issue, do get in contact with me.