In times where there is economic uncertainty and a cost of living crisis, what should employers think about when more employees may seek to take on second jobs?

We are partners of AHR Consultants, specialists in HR and employment law, who have discussed the legal implications whilst answering some key questions for employers.

Can employees have a second job?

Firstly, is an employee permitted to have a second job? It should be remembered that it is not 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.

Many employees have more than one job. Employers should however look to the contract of employment as they may expressly prevent employees from doing so or at least from doing so without prior written consent from the employer. This is often referred to as an ‘exclusivity’ or ‘outside interests’ clause in the employment contract.

The purpose is to prevent employees from working with similar or competing businesses. However, it is sometimes used to limit employees taking up additional jobs which could in turn impact their ability to carry out their main role, or perhaps lead to damaging the reputation of the main employer business.

Contractual Restrictions

If there is a restriction in the contract, then the employee should be asking for written consent before they take up any other work. If an employer thinks it is necessary to reject such a request, they should consider whether they can justify that decision and the evidence that supports that.

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.

Considerations might include:

• What is the reason for the restriction?
• Is it all or just competing interests?
• What is the risk of harm?

This 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.

Working Time Regulations

The Working Time Regulations 1998 (the Regulations) are a relevant consideration. 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.

Government guidance requires all working time to be counted, not just time worked for a particular employer. This means that if an employee has 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. This can be very problematic.

Source: AHR Consultants