Christmas is coming and for many, it’s one of the most expensive times of the year. To better manage that, especially as the cost-of-living crisis continues, some employees have sought to take on second jobs. In this feature, we look at what employers need to think about if they get such a request from an employee and how much of a say they have over what their employees do outside of work.
Background
There’s a lot to think about when an employee seeks to take on a second job. What if it’s with a competitor? When will they be working there and what if it makes them too tired to perform their role with you? How will this be monitored and managed? These are all valid questions and are important points that should be discussed with an employee before they embark on other employment alongside what they already do for your organisation.
It’s recommended to set out the organisation’s position on second jobs in a policy that instructs employees to inform their line manager of their intention to seek secondary employment. By encouraging transparency in this, it reduces the risks that can arise with employees taking on other jobs and better allows the situation to be managed.
Checking the contract
Should an employee approach the business about taking on a second job or other form of work, the first thing to consider is the contractual wording. Does it deal with second employment in any way?
The following are typical examples of when this might be the case.
- A clause requiring consent to be obtained prior to taking on any additional jobs or work.
- A clause prohibiting the employee from performing work that either directly competes with their main employment or would detract from their performance in some way.
- An exclusivity clause prohibiting the employee from working elsewhere.
Whilst these clauses can be useful, they must still be exercised reasonably and any restrictions that are placed on what an employee can do in their free time must be proportionate. For example, reinforcing a clause preventing an employee from doing the same job with a competitor could be appropriate, whereas doing something different for an employer in an unrelated industry is likely not to be.
Dealing with employees who fail to disclose secondary employment
Depending on what the contract of employment says, this could amount to a disciplinary issue and formal action may need to be taken against the individual. However, any disciplinary action must be reasonable and take into consideration the impact on the employer of the alleged misconduct.
A thorough investigation should be undertaken first and a full disciplinary process will need to be followed before any formal sanction is issued. Applying too harsh a sanction, such as dismissal, could result in an unfair dismissal as, depending on the circumstances, it could fall outside of the range of reasonable responses a reasonable employer would have. Action short of dismissal could also be in a breach of the implied term of trust and confidence and lead to a constructive unfair dismissal. Currently, an employee needs two years’ service to bring such a claim.
Safety concerns
Rest is vital to good health and performance at work and employees considering taking on additional work should be reminded of this. A discussion should also be held with them around how they are going to ensure they get this. It may be that risk assessments and their duties need to be reassessed, especially if the additional work is strenuous or disturbs their sleep patterns.
The Working Time Regulations 1998
The Working Time Regulations (WTR) 1998 establish certain minimums and maximums when it comes to weekly working hours and rest breaks. Whilst employees can opt out of the 48-hours maximum working week — and any employees asking to work a second job should be asked to sign this, as this maximum applies across all employment they have — they cannot opt out of the daily and weekly rest breaks. Adults must have an uninterrupted 11-hour rest break each day and either two 24-hour rest periods or one of 48 hours over the course of two weeks. These rules apply to all work the employee undertakes, not just for one employer.
A note on zero-hours workers
When it comes to second jobs, the same rules that you might consider applying to other employees cannot be utilised with zero-hours workers. The Exclusivity Terms for Zero Hours Workers (Unenforceability and Redress) Regulations 2022 came into force from 5 December 2022, and these regulations make exclusivity clauses unenforceable in employment contracts where the guaranteed weekly income is below or equivalent to the lower earnings limit (LEL).
This means where the contract guarantees the employee the same as, or less than, the current rate of the LEL, then you cannot stop them from working elsewhere and any clause that seeks to this is unenforceable. This applies even if these employees regularly earn over the LEL as the key is how much they are guaranteed to earn each week.
Conclusion
When it comes to taking on a second job, there is much that needs to be considered. There are the WTR to consider and the need to adhere to the rules on working hours, as well as the ban on exclusivity clauses for those on zero and low hours contracts.
The need to treat employees reasonably cannot be understated. It’s a key requirement in the employment relationship and this applies when it comes to managing employee requests to work a second job in their spare time. Acting in a way that falls outside a reasonable course of action could be damaging to the employment relationship and result in serious consequences.
