Should I Allow My Workers To Work A Second Job?

With the increasing cost of fuel whether that’s filling our cars or using gas and electricity at home, no one can deny that times are currently very hard. We are all feeling the pinch with the rise in the cost-of-living.?

So, what do you do if you have a worker who is seeking to bolster their income with another job?

This depends on the contract you have with your staff and importantly the type of contract.?If you have a clause in the contract which prevents your workers working for another employer (these are typically in contracts where the worker is full time), your employee will need to seek your express prior written permission.?Where the contract with your worker is a zero-hour contract, you are prohibited as an employer from enforcing any clauses which prevents your zero hours workers from solely working for you: section 27 Employment Rights Act 1996.?Where you dismiss an employee on a zero hour contract for working for another employer, this will be an automatic unfair dismissal for which there is no need for a qualifying period of 2 years. The same protection from unfair dismissal afforded to those on zero hours contracts is expected to be widened in 2022 to include contracts in which guaranteed income is lower than the Lower Earnings Limit (currently ￡123 per week). The proposals follow the conclusion of a government consultation launched in December 2020.

Where your employee is not a zero-hours worker and is struggling financially, it may be prudent to consider whether there is any overtime or short-term projects you would like to allocate to the employer to try and show support. Alternatively, if business finances permit, you may want to consider a review of their salary, with an incremental pay rise.?The positive side effect is increased employee morale, loyalty and employee retention, rather than risk losing your employees to a competitor.??

What do you do where you are an employer that can’t afford to support an incremental pay rise?

Where you have a clause preventing employees from working elsewhere for a second employer, you are entitled to rely on that clause.?Afterall, employers don’t want their employees working for a competitor undermining the implied term of fidelity.?Providing you have a well drafted contract which addresses restraints of trade and restrictive covenants during the employee’s tenure; you at least have some form of protection.?However, where an employee approaches you about working for another employer, you will need to consider whether there is a conflict of interest and whether there is also the risk of confidential information being shared with the second employer.?Ideally, you should sit down with your employee and explore how they would like to generate additional revenue and whether or not the second employer is a competitor? For instance, you should in theory, be more easily able to agree that they can work elsewhere if the second employer operates an entirely separate industry and area of skill to yours.??

?What about the Working Time Regulations 1998?

Under the Working Time Regulations (WTR), unless the worker has opted out, they should not exceed the number of 48 hours per week over a 17-week reference period.?The 17-week reference period should not include annual leave or sick leave.?It is calculated over the actual number of weeks they have worked.?Workers can sign opt-out agreements but do remember this can be revoked at any time.?

You also need to ensure that your employee is receipt of sufficient rest breaks if they are considering working between jobs.?So, under the WTR, a worker is entitled to a rest break of 11 hours in any 24-hour period. Furthermore, under regulation 11 of the WTR 1998, a worker is entitled to at least one 24-hour period of uninterrupted time off work every week. The 24 hours must be consecutive but can run across two days.

So, before you have that all important conversation with your employee seeking a second job, you will need to consider:

• Type of contract – zero-hour contracts prohibits exclusivity – and this will be an automatic unfair dismissal if you terminate the employment for this reason;
• Whether there is a conflict of interest – is the second employer a competitor?
• The welfare of your employees – will they be able to get a sufficient rest break in accordance with the Working Time Regulations?

Finally, if you are able to agree with your worker/ employee that they can take on another job, agree the terms in writing and ensure there is a date to review.?Where the second job appears to be having an adverse effect on your business, again it would be reasonable to review those adverse effects and discuss with your employee what measures can be taken or whether it is in the parties’ best interests to continue.?

If you require HR or Employment Law Support and would like to message me directly, you can get me on directly:

Jane Southall?

Mobile: 07861 309 729

Email: [email protected]