A survey by comparethemarket.com has found that nearly half of all working adults in the UK, around 16.5 million people, are considering taking on some form of paid work in addition to their primary employment.
Many employees may not be permitted to do this without their employer’s consent. This could be due to an exclusivity clause in their contract, requiring express permission to be engaged or employed by any other business.
Should you allow it? Here are seven factors to consider:
- Has your employee opted out of the 48-hour limit under the Working Time Regulations (‘WTR’)?The 48-hour weekly average is the limit on working time even if your employee has more than one job. If they take on a second job and they’ll regularly exceed the 48-hour working time limit, you’ll need either to ask them to sign an opt-out agreement or take whatever steps are necessary to ensure that they stay within the limit. You may tell them to reduce their working hours in one or both jobs.
If they say that it is none of your business, explain that you have a statutory duty to ‘take all reasonable steps’ to ensure statutory compliance with the WTR and the buck stops with you.
- Is there a health and safety risk?If your employee’s role is safety critical, you must ensure that they can still safely fulfil their duties if they are working more than one job.
- Will it affect their performance?Will their standards slip because they are tired? You are paying the same money so you should get the same performance. Were they already performing poorly, and could a second job be the cause?
- Did you know?You may have grounds to discipline your employee if they took on a second job without your consent. Check your rules. Remember that you must act substantively and procedurally fairly even if your employee has breached their contract or your policy. Evaluate all of the relevant circumstances. But act promptly. It will be difficult for you to act later if you did nothing when you first discovered the second job.
- Is there a risk of conflict?For whom will your employee be working and what will they be doing? Identify whether there is a risk of actual or possible conflicts of interest. Will your employee be working for a competitor or are they setting up a competing business? Does their work risk your reputation?
You are entitled to protect your business, but you must also act reasonably. Where your employment contracts prohibit or restrict secondary employment, you could advise your employees that you may relax this at your discretion. This enables you to protect your business yet support employees. It will also encourage openness from your people.
- Is it really a second job?Your employee may have developed an outside interest which now produces a stream of income (‘a side hustle’). It may not fall within the definition of an additional role that requires your consent. It may help develop your employee’s skills but remember that some of the considerations above may still apply. Despite not requiring your express consent, you may still express your view, particularly if you are legitimately concerned
- When are they doing the work?Is your employee working for their second employer in the time for which you are paying? If your employee works from home or on a hybrid basis, you may question whether they are devoting their full time and attention to their primary role. You may need to formally manage their performance but take care to stay within the data protection and privacy legislation when monitoring.
