Member Article

With increased cost of living and ongoing economic uncertainty, more and more workers are being forced to take on two (or more) jobs to cover soaring energy bills and pricey food shops. What do employers need to know and watch out for when this happens?

Is having a second job permitted?

It is not necessarily unusual for employees to have more than one job at the same time. However, employment contracts may expressly prevent employees from doing so or at least from doing so without prior written consent from the employer – this sort of restriction is usually referred to as an ‘exclusivity’ or ‘outside interests’ clause in the employment contract.

The main reason for this restriction is to prevent employees from working with similar or competing businesses. However, it might also be used to limit employees taking up additional jobs which could in turn impact their ability to carry out their substantive role, or even lead to damaging the reputation of a business.

If there is a restriction in the relevant employment contract, then the employee should be asking for written consent before they take up any other work (whether short-term or temporary, paid or voluntary). If employers consider it necessary to reject such a request, they should consider whether they can properly justify that decision.

As with any restrictive or onerous contract terms, employers should also consider whether it is appropriate to include it in every employment contract, or whether it is more appropriate for just the most senior or key employees. For example, think about:

• What is the reason for the restriction?
• Should all outside interests be restricted or just competing interests?
• Is there a risk of harm to the business if an employee works elsewhere?

Together, those questions will help the employer to identify if there is a legitimate business interest to impose such a restriction and therefore whether it is appropriate to impose a restriction at all.

Keep in mind that it is not usually appropriate to impose a blanket restriction on a part-time or zero-hour employee as they should not be restricted from obtaining work in their own time.

Impact of the Working Time Regulations 1998 (the Regulations)

The Regulations apply to all workers (and therefore all employees too) unless otherwise expressly excluded. Under the Regulations, all workers are restricted to working no more than 48 hours per week. Workers may choose to opt-out contractually in order to work more than 48 hours per week and, in some cases, this could well be an occupational requirement.

Working time is measured by calculating the average hours worked over a specific reference period (which is usually 17 weeks). That means that a worker could actually work slightly over 48 hours for one or two weeks but still be within the legal limit across the entire reference period.

Government guidance interprets the working time limit as requiring all working time to be counted, not just time worked for a particular employer. This means that if employees have more than one job, employers will need to keep track of how many hours that employee is working and make sure that they are not working in breach of the Regulations. That can be tricky because anything outside of the employer’s own workplace will most likely be out of its control and the necessary information will not be readily available.

Exclusivity clauses can benefit employers in this case, either preventing employees from taking up any additional work, or otherwise requiring employees to provide notice of such which at least makes the employer aware of the additional work and able to ask for information from the employee as to what hours are worked elsewhere. If no such clause exists, employers may want to consider including a policy requirement that employees notify employers if they want to take up any additional work in order to maintain some oversight of this.

As an extra protection, employers could encourage those employees with additional jobs to opt-out of the working time limit in order to prevent any breaches of the Regulations in the event that they have more than one job – after all, better to be safe than sorry! If an employee refuses to sign the opt-out, then the employer is allowed to reasonably limit their working hours or request them to reduce working hours in their second job.

Protecting employee wellbeing

The Regulations place an obligation on employers to protect the health and wellbeing of employees and failure to do so is a criminal offence punishable with a potentially unlimited fine.

Employers have a duty of care towards their employees and must think about the practical implications that arise with secondary employment. Second jobs can lead to overworked and tired employees, affecting engagement and productivity and generally resulting in workplace stress. This can in turn lead to an increased risk of workplace accidents and injuries, especially for businesses operating machinery or vehicles.

Employees may not be able to manage these risks alone and so employers should be mindful of their employee’s well-being and take active steps to mitigate any concerns. Some ideas of how to do this might include:

• an employee assistance programme which can provide counselling services or just space to talk;
• financial management advice or savings schemes;
• time management coaching sessions;
• a chill out space in the workplace;
• considering flexible working to allow an employee to start a bit later in the day or condense their hours;
• carrying out a stress risk assessment.

The costs are rising for employers too, but it doesn’t necessarily need to be costly to care. Talking about mental (and physical) health in the workplace and giving employees the opportunity to open up and feel supported may be enough, or at least a good start.

Some employers may be in a position to offer financial support through employee loan schemes, which might ease the pinch for many workers this winter. For advice on how such schemes work and how to put them in place, please do get in touch.

 

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