Employee wants to take on a second job, Know your rights.

With ever increasing costs it’s more common than ever that many of us are having to take on a second job.   But what does that mean for you as an employer and what should you be considering.

Check your contracts of employment

Many employers will already have this covered in their contracts of employment, with specific clauses stating that employees must not engage in other work outside of working hours, without the prior written permission of their manager.  That said, employers should not withhold consent without good reason. 

For what reasons can I withhold consent? 

You can refuse to grant permission if you believe the work is in direct or indirect competition with your business or might otherwise cause a conflict of interest.  Some second jobs may not be aligned to your own business values, which could potentially cause you problems if your customers find out.  A second job may even impair the employee’s ability to perform their role for you efficiently and safely.  If you have concerns about your employee’s request, have a chat about the additional hours they will be working, and what the role involves, to be sure they are getting adequate rest between jobs. 

What if I refuse and they take the job anyway?

If you have a valid reason to withhold consent, then this would be a misconduct issue as the employee has disregarded a reasonable management instruction. 

What if the contract of employment is silent on secondary employment?

You can still refuse permission based on the implied term of trust and confidence if you believe that the second job would pose a risk to your business. 

How do I safeguard my business?

If you don’t already have a restrictive covenant clause in your contracts of employment, then if you agree that your employee can take on a second job, this is an ideal opportunity to introduce a restrictive covenant as an addendum to their current contract, particularly if the second job is in the same sector.   The restrictive covenant should also contain a clause to cover confidentiality and protect your IP. 

Should I ask my employee to sign an Opt Out Agreement?

• Regulation 4(1) of the Working Time Regulations 1998 (the “Regulations”) provides that a worker’s average working time, including overtime, shall not exceed 48 hours for each 7-day period (to be averaged over a period of 17 weeks).  If your employee’s working hours are likely to exceed this amount, and the combined average weekly hours exceed the 48-hour limit, then ask them to sign a Working Time Waiver Agreement to opt out of this provision.  
• Can my employee be off sick and receive SSP, whilst continuing to work in their second job?
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• An employee can continue to work in their second job if medically fit to do so.  For example, an employee with a manual job who is struggling physically due to injury or illness, or an employee who is off with work related stress may still be fit to work in a second, sedentary role or in another work environment.   If your employee meets the qualifying criteria, they will still be entitled to SSP regardless of working a second job.  If they are off sick from both jobs, then they may also be entitled to receive SSP from both employers. 
• What can I do if my employee’s performance is affected?

Having a second job may impact your employee’s energy levels and ability to perform to the required level, particularly if their second job is in the evenings, after a full day at work.  The first step would be to have an informal discussion about your concerns. 

Is there an upside to my employee having a second job?

Your employee may develop new and useful skills which will benefit them in their employment with you.  In addition to which, improved financial security for your employee, may also positively impact their wellbeing and performance all round. 

For more information, please contact Spectra