The number of people seeking second employment has been rising steadily over the last two years according to recent figures from the Office for National Statistics. In the UK and globally, people are being impacted by the current cost of living crisis. This may lead to employees needing to work additional jobs to cover their day-to-day living costs.
If an employee wishes to work more than one job, as an employer you’ll have several things to consider according to experts at FSB Employment Protection. You should always seek legal advice before taking any action. FSB members have access to a 24/7 legal and employment helpline.
Contract of employment
Firstly, what does the contract of employment say about second employment? There may be an express requirement for your employee to seek permission from you as the employer before they engage in a second job – whether that be on an employed or self-employed basis or any other interest they may take up in another business.
In seeking an employer’s permission, you should find out more information about the second job. Once you have this information, you should consider the request and permission should not be unreasonably withheld.
An important factor when considering permitting a second job would be the nature of the work and who they would be working for. As an employer, you would be keen to avoid any conflicts of interest and employees working for competitors. It may be valid to decline giving permission where it could put the employee in a position where their interests are conflicting between their two employers or may put them in a position of compromising confidentiality.
If there are no express clauses or policies on second employment, then you may be able to rely on an implied obligation that the employee should not engage in any interests that could put them in a position where their obligations to each employer would conflict. This would be subject to the particular facts, such as the role the employee held, the amount and type of confidential information they are privy to, who they will work for, and what their role there will be.
If an employee fails to seek permission where the employment contract requires the employer’s permission, or prohibits further employment entirely, you should investigate the circumstances thoroughly. In some situations, it may be necessary to suspend an employee pending an investigation. Disciplinary action may be necessary and may warrant a sanction up to and including dismissal, subject to the circumstances.
Working Time Regulations (WTR)
You should consider your obligations under the WTR. Under the WTR, an employee can only work up to 48 hours per week unless they have signed an opt out agreement disapplying the rule.
Where an employee has two jobs, the employers would need to consider whether the employee would be in breach of this. If they are, the employee would need to be consulted with about considering an opt out agreement. If the employee does not wish to sign an opt out, you’re under a duty to take steps to address this breach of the 48 hour working week and consult about any alternative options.
Health and safety
You should also consider your health and safety obligations to an employee and their wellbeing. If an employee is coming into work and there is an impact on the business, such as poor performance or employee tiredness, you should take your normal steps to investigate.
If it is connected to working their two jobs, you and your employee may have to take steps to address this. This may involve speaking to the employee about the impact and discussing ways to avoid this occurring, for example reducing their hours or changing working patterns.
What should you do now?
- Review contracts and policies to see if there is an express provision about taking on a second job.
- Consider whether one should be implemented if there is currently nothing in place. As part of this consideration, think about whether it should be a blanket policy or apply to particular roles/functions.
- Understand that employees may wish to take on more work for financial reasons because of the economic situation and their financial obligations, so consider any request fairly and reasonably.
- Seek legal advice for guidance.