Second, or even third, jobs are being sought by employees to try and stay above the breadline and beat the cost-of-living crisis, however there are some challenging issues for employers to consider.
Implied terms
Implied terms are obligations on an employee and/or employer that are not always written in employment contracts but are inferred into them by the common law. A key one here is the duty of fidelity and good faith. This restricts an employee from working in competition with their employer. However, it is not a blanket ban on an employee taking on a second job if they are not competition with their employer nor causing harm to their employer’s legitimate business interests.
The implied duty to not compete has been found to apply even in an employee’s spare time, ie out of working hours. However, the courts have been cautious not to apply this too strictly; for instance, in Nova Plastics v Froggatt [1982] IRLR 146 the tribunal found that it was not a breach for an odd-job man to do some work for a rival business in his spare time, as this could not be said to cause any serious harm to the employer. Nevertheless, employers may still be protected. An employee should err on the side of caution where their role is one that requires a high level of skill and where they are privy to information of a sensitive nature, as the tribunal may view this as creating circumstances where the employee would have known of the harm they could be causing the employer.
Express terms
An employment contract may also contain provisions that prevent an employee from seeking further employment. These can be very simple, such as: “You shall not work for anyone else while you are employed by the company without our prior written approval.”
This restricts an employee seeking additional employment without first informing their current employer and the current employer consenting to this. This level of detail would be suitable for a junior member of staff, however, for a more senior employee the following may be more suitable: “During your employment you shall, unless prevented by [ill health], devote the whole of your time, attention and abilities to our business and not work for anyone else without our prior written approval.”
This provides a little more protection to the employer as it not only prevents the employee from seeking alternative employment but also requires the employee to devote the whole of their time etc, to the business. This, interpreted literally, would restrict the employee from working another job as this would impact and neglect their obligations to their main employer.
An employer can always agree to waive these rights and allow an employee to take other employment, ie give their consent.
Regulations
Further, if made aware that an employee has – or is looking to have – secondary employment, the employer should have consideration for the Working Time Regulations and specifically the 48-hour week limit. As this provision applies to all forms of work collectively, for each individual employer there is a real risk that this could be breached if an employee is working a second job. It is therefore important to review your employee’s employment contract to determine whether or not there is an opt out, and if there is not, whether it would be wise for an employee to do so.
Practical considerations
Working multiple jobs will likely cause a lot of stress; while the additional employment may not be the most arduous or mentally draining task, the time spent working a further job could leave the employee feeling fatigued. The result may be an underperforming employee who has simply over worked themselves to the point of burn-out.
As an employer you should welcome an open dialogue in relation to financial concerns. This not only ensures that trust and confidence is maintained in the employee/employer relationship but also creates a path for consents to additional employment as discussed in the express terms section. Further, an employer should consider adopting a financial wellbeing policy. ACAS has provided guidance that these should not only signpost places that support can be provided but also include:
- reassurance that a fair and reasonable wage will be paid
- commitment to developing skills for employee progression
- employee benefits
- signposts to financial education sources
- signposts to external financial guidance
- employer’s commitment to flexible working
- the working hours the employer will provide
- financial information for key life stages, eg maternity pay
As an alternative to employees seeking second jobs, an employer may consider other options to support staff. This could include reviewing the organisation’s benefits package and offering or continuing flexible/hybrid working arrangements to help reduce the cost of commuting. However, the latter may not be an option for all and employees may be reluctant to work from home due to the ever-increasing cost of electricity and heating.
Claire Merritt is partner and Tom Fish is a trainee solicitor in the employment team at Paris Smith
