How to deal with employees and their second jobs

In some cases employees carrying out secondary work will not be a concern to businesses as there can be benefits. Employees will be up-skilling themselves which could benefit their primary employer and they may well be boosting their mental health by alleviating financial concerns and doing something they are particularly passionate about. However, some businesses will want to prevent either their whole workforce or certain employees from taking on secondary work.

In most circumstances it is possible to prevent this through either the use of policies, or contractual wording. However, the first point to consider is whether your member of staff is on a zero-hour contract. If they are then so called “exclusivity clauses” preventing workers from working elsewhere are not permitted. The Government have announced this ban on “exclusivity clauses” will be extended to workers whose weekly income is below the low earnings limit which is currently £123, however, no date has been given yet as to when this will come into force. View our previous article here.

Discounting zero-hour workers or those earning below the low earnings limit then the employment contract can include wording to prevent an employee from carrying out any other work:

• at all whilst they are employed by their primary employer; or
• in competition with their primary employer; or
• without prior permission having been obtained from their primary employer.

The more senior the employee is the more prevalent the requirement not to carry out secondary work becomes.

If, having reviewed your employment contracts, they are silent on employees carrying out secondary work then it could be possible to rely on the implied term of mutual trust and confidence that exists in all employment relationships in order to require the employee to stop the secondary work. This would apply if the secondary work posed a risk to your business. However, it will generally always be easier if a specific clause is included in the contract of employment setting out the company’s position on second jobs.

If your business has employees that have second jobs then consideration needs to be given to the following issues:

• Performance concerns: There may be concern that the employee is working too much which is impacting their performance in their primary job, or they could be working on their secondary work during their primary job working hours. This is most likely if the employee’s secondary work is entrepreneurial and depends solely on their input to make money. This could cause issues from an employee morale perspective due to the pressure then placed on other team members.

Working on their secondary job during their primary job working hours is a breach of the employment contract and so it and any performance concerns should be dealt with as a disciplinary matter.

• Health and safety issues: Employers have a responsibility to manage health and safety risks in their business so far as is possible and as such employers have a duty to assess risks in their workplace. If an employee’s secondary job is causing a risk to either their health and safety or that of their colleagues’ then employers have a duty to prevent this.

One solution being to agree with the employee to reduce their hours in one of their jobs.

• Breaching the Working Time Regulations: The Working Time Regulations restrict workers from working more than 48 hours a week on average unless they have agreed in writing to opt-out of the regulations. The 48 hour limit is in respect of the combined number of hours a worker works across all jobs they may have.

Businesses should therefore review their employment contracts and new starter forms to check they require their workers to opt-out of the Working Time Regulations limit on average working weeks. If they do not then it is good practice for businesses to require workers to disclose any second jobs they have so that their working time can be monitored, otherwise the business can be held liable for breach of the Working Time Regulations.

• Reputational damage: Employees carrying out secondary work have the potential to damage the reputation of their primary employer whilst carrying out this secondary work. This is particularly likely to be a risk if the secondary job is social media based. The image or the views the employee portrays on their social media profiles may be in contrast to the values held by their primary employer.

Businesses should have clear policies in place about social media usage outside of the workplace. For example, some businesses will prohibit their employees from making it known on their social media who their employer is and will have clear rules that use of social media will not contravene any discrimination laws and the company’s values. Should employees breach these rules it can be dealt with as a disciplinary issue and will provide a basis for employers to reasonably request that employees stop their secondary job.

• Competing with the primary employer: If the employees secondary work competes with the work carried out by their primary employer they could well be using confidential information, targeting the same client base and will no doubt be benefiting from skills they have developed whilst working for their primary employer.

It is sensible for businesses to ensure that at the very least their employment contracts require employees to seek permission from a senior manager if they intend to work in competition with their primary employer. This way businesses can manage the level of risk.

If you need advice on how to manage an employee whose secondary work is causing problems for your business, or you want advice reviewing your contracts of employment and policies in this area then contact a member of our employment team on 0161 832 3434.