Claire Merritt from Paris Smith considers second jobs and their practical considerations for employers

With inflation continuing, mortgage rates increasing and the wider cost of living crisis, many employees are looking to take second or maybe even third jobs.

Employee may be looking to make more money from a ‘side hustle’ and run their own business outside of work.  For employers, there are some challenging issues to consider.

Implied terms

Implied terms are obligations on an employee and/or employer that are not always written in employment contracts but implied 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.

Express terms

To avoid any ambiguity, an employment contract may also contain provisions that prevent an employee from seeking further employment.

These clauses explicitly set out that an employee cannot engage with another company or organisation. Generally, the clause allows for the employer to consent to this second role, thus allowing for flexibility.

An employer can then review requests for second jobs or activities. The employer can decide if the second role would be competitive, detrimental or just a concern from a health and safety perspective i.e. the employee working too many hours. This is the best way for an employer to retain some control on the employees’ activities and working hours.

Health and safety

If an employee has or is looking to take on 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 if an employee is working a second job that this could be breached.

It is therefore important to review your employees’ employment contract to determine whether or not there is an opt out of the 48 hour working week.

Practical considerations

Working multiple jobs will likely cause a lot of stress and tiredness. The result of this could be a loss of productivity but also wellbeing concerns.

Employers should welcome an open dialogue in relation to financial concerns. This will not only ensure that trust and confidence is maintained in the employee/employer relationship but also create a path for consents to additional employment if required.

It could be a good idea for 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; and
• financial information for key life stages, e.g. maternity pay.

As alternatives to employees seeking second jobs, an employer could consider some other options to support staff.

You could consider the organisation’s benefit package and another easy step could be to continue flexible/hybrid working arrangements which could lead to savings, as the employee would not need to pay for the cost of commuting.

However, this may not be an option for all and employees may be reluctant to work from home due to the cost of electricity and heating.

• https://parissmith.co.uk/