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A guide to second jobs: key considerations for employers

In the current economic environment, it is not unusual for employees to take on a second job. For many employees, it is simply a way to make ends meet. For others it may afford greater flexibility and/or an opportunity to diversify their skillset. Employers should be aware of the follow considerations:

Implied duty of fidelity

Every employee owes an implied duty of fidelity to their employer during their employment. This means that they should not act in a way which could be detrimental to the interests of the employer.

For an employer to be able to stop or limit an employee’s ability to work for another employer it will be necessary to demonstrate that it has suffered significant harm as a result of that activity. This can be difficult to establish. Therefore, it may be more appropriate to insert an express clause into the contract of employment.

Exclusivity clauses

A blanket exclusivity clause may not be enforceable because an employee is generally entitled to work elsewhere in his or her spare time. However, employers could consider a clause preventing an employee from working for a competitor. Such clauses should be carefully drafted to ensure that they go no further than is necessary to protect the legitimate business interests. Seeking to prohibit a zero hours’ worker from working elsewhere is however, unenforceable.

48 hour working week

If an employee works over 48 hours combined (including work for another employer) and has not opted out of the 48 hour working week the employer could be liable for a fine, a notice from the Health and Safety Executive and/or tribunal compensation. An employer is also required to keep records of working time for any employees who haven’t signed an opt-out agreement. Therefore, it is vital to require your employees to inform you if they have a second job, so that you can monitor their working hours.

Sickness absence

Although rare, it can be frustrating when an employee is on sick leave from one employer but still working for the other. However, this is not a green light to dismissal or disciplinary action. In the case of Perry v Imperial College Healthcare, an employee was dismissed for taking sick leave from one job whilst continuing to work in the other. The Employment Appeal Tribunal found that her dismissal was unfair because her knee condition genuinely prevented her from working as a community midwife but it did not prevent her from working in her desk job.

Given all of the above, it may be wise for employees to be required via policy or in their contract of employment to disclose any other work, including the name of those employers and their working hours. This would then alert you to potential risks and appropriate action could be taken.

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Please feel free to contact us on 0191 282 2880 for a no obligation chat or email us if you require further advice regarding employees with second jobs.



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