With the cost of living rising exponentially, more and more people are having to take on second jobs or extra hours to make ends meet. Here we consider the contractual and employment law issues that employers need to be aware of when their employees have second jobs.
Does an employee need an employer’s consent to obtain another job?
Generally speaking, an employee is free to work elsewhere outside the hours they work for an employer. The employer may be able to rely on an implied duty not to compete (see below) to prevent the employee from working for a competitor but, in the absence of an express clause in the employee’s contract, there is nothing to prevent an employee from undertaking other work when not working for their employer.
That said, it is common for an employee to have an express term in their contract which states that they cannot work elsewhere during their employment, or that they can only do so with the prior consent of the employer. For senior employees, the contract of employment will usually contain a blanket prohibition on secondary employment or other paid work since the employer will want to ensure that the employee devotes their whole time and attention to the employer’s business and is not compromised by competing demands on their time or energy. For junior employees, the contract may simply require that the employee seek permission first.
Where such an express term exists, an employee who takes on secondary employment without first obtaining the employer’s express consent will be in breach of contract and is likely to face disciplinary proceedings up to and including dismissal.
Working Time Regulations and the 48 hour weekly working limit
As well as contractual issues, the Working Time Regulations 1998 must be considered in relation to employees who have or seek to obtain secondary employment. Any work that an employee does for another employer will count as “working time” for the purposes of calculating whether the employee’s average working time exceeds the 48 hour weekly limit. This means that both employers are responsible for ensuring that the employee’s working time does not exceed the 48-hour limit.
A workers weekly average working time is calculated by adding up all of their working time (including overtime) over a reference period, which is usually 17 weeks, and then dividing that total figure by the number of weeks in the reference period.
An employer will therefore need to find out from the employee how many hours they are working in their second job to calculate whether their working time exceeds the maximum weekly limit. An employer who does not take reasonable steps to ensure that its workers do not work more than 48 hours a week commits an offence under the Working Time Regulations 1998 and therefore it is important these enquiries are made of all employees with second jobs.
An employer is not committing an offence under the Regulations if the employee has signed an opt out of the 48 hour week in writing. Therefore, if an employer is concerned that the total time to be worked by the employee is likely to be in excess of 48 hours a week, the employee should be asked to sign an opt-out agreement.
If the employee refuses to sign such an opt out agreement, then the employer will have to consider other options which could include requiring the employee to give up the secondary job or reduce their working hours in order to bring them under the 48-hour threshold. Such steps should not be taken without taking advice first, since making changes to an employee’s working hours constitutes a major change to their contractual terms and will normally require consent.
Even with an opt out agreement in place, there are other health and safety issues responsibilities that an employer must consider when an employee is working two jobs.
Daily and weekly rest periods
Under the Working Time Regulations 1998, workers are entitled to a daily rest period of 11 consecutive hours and a weekly rest period of 24 hours. Where an employee has more than one job, it is possible that the employee will not be able to take these rest periods. The question is what responsibility the employer bears for ensuring that the employee takes these rest breaks.
The answer is not particularly clear cut! Under the Working Time Regulations 1998, an employer must ensure that its workers can take daily and weekly rest periods, but is not required to force workers to take them. Workers can choose to work more hours and forego their rest entitlements provided that the employer does not breach the 48 hour limit on working time and does not breach the rules on night time working.
Therefore, if an employee chooses to give up their rest breaks because they want to take on another job, the employer will not be in breach of the Working Time Regulations 1998.
However, as with the 48-hour limit on the working week, it is important to bear in mind that the laws relating to rest breaks are aimed at protecting the health and safety of workers. Even if an employer is not in breach of the Working Time Regulations in relation to rest breaks because the employee has voluntarily given up such breaks, the employer’s duty of care to have regard for the health and safety of its workers remains.
If an employer is aware that an employee is working elsewhere and not taking rest breaks, this could put the employer at potential risk of liability.
Health and safety
As mentioned above, employers are under a duty, so far as is reasonably practicable, to protect the health, safety and welfare at work of all their employees. This includes ensuring that staff do not work excessive hours where this puts their health and safety at risk. An employee who experiences work-related stress or other health issues may argue that this has been caused by their employer requiring them to work long hours, which could lead to potential claims.
The employer’s duty of care must be considered when an employee has a second job or seeks consent to obtain a second job, particularly if the employee will be working during their daily or weekly rest period and/or working in excess of 48 hours a week. If there is a concern that the employee’s hours of work will pose a risk to themselves or to others then an employer must take reasonable steps to remove those risks, which – depending on the situation – could include refusing consent or requiring the employee to stop their second job or reduce their hours of work.
Conflict of interest
As well as considering issues of health and safety, employers will want to know what type of work the employee will be undertaking outside their working hours to make sure this does not conflict with the employer’s legitimate interests.
Even if there is no express clause in the employee’s contract prohibiting them from working for anyone else, an employee owes their employer an implied duty of fidelity and good faith which restricts them from working in competition with their employer.
The courts have established that this duty not to compete applies during an employee’s spare time but have been wary not to apply this too strictly. As such, an employee is unlikely to be in breach of their implied duty by working for a competitor in their spare time unless they are causing serious harm to their employer’s legitimate business interests. Therefore, in the absence of an express clause limiting an employee’s ability to work elsewhere, an employer is likely to find it difficult to rely on the implied term of fidelity and good faith to prevent an employee working for a competitor in their second job if there is no obvious risk of harm.
Zero hour contracts
On a related note, the law prohibits the use of exclusivity clauses in zero hour contracts. Any clause in a zero hour contract which prohibits the worker from working elsewhere or from working elsewhere without the employer’s consent will be null and void.
Action to Take
- Review your staff contracts of employment to check they meet your business and legal requirements in terms of employees obtaining secondary employment.
If your employment contracts are silent on the issue of secondary employment, consider introducing a clause within your contracts to deal with it. It is advisable to have a provision in the contracts of senior/highly skilled employees limiting their ability to work elsewhere. It is also recommended to have such a similar provision in the contracts of all employees (except zero hour staff) not least because it helps with your responsibilities under the Working Time Regulations.
- Where an employee has more than one job, request details in writing of the work undertaken for other employers. This will help towards meeting your obligations under the Working Time Regulations to take reasonable steps to ensure that your workers do not work more than 48 hours a week. We can provide a template letter for this purpose.
- Remind employees periodically of their contractual obligations (if any) in relation to obtaining secondary jobs so that you can meet your obligations under the Working Time Regulations.
- Consider which employees are likely to exceed the 48-hour average (whether those hours are worked for you or in aggregate with another employer) and seek to enter into opt-out agreements with them to exclude the limit on their average working time. Keep a list of all opted out employees.
- Carry out regular risk assessments in relation to staff members with second jobs and/or whose hours exceed the 48-hour limits to identify and address any concerns relating to the employee’s hours of work and their health and safety and that of others.
- Ensure you keep records of the hours worked by employees to show compliance with the 48-hour limit on the average week, the protections for night workers and daily and weekly rest periods.
In particular, the Health and Safety Executive is responsible for monitoring the application of the limits on working time and will expect to see records going back over two years for all employees (except those who have opted out) showing that average working time is less than 48 hours per week.