It is not unusual for employees to take on a second job and according to recent figures one in five police officers now has a second job outside of the police force. 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. However, are there any potential pitfalls for an employer and what can an employer do to avoid them?
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. Employees who work for themselves or someone else, during working time, are very likely to be in breach of this duty and this would usually justify their dismissal.
However, the position is not so clear-cut when the employee works for someone else outside of their working time, even if they are working for a competitor. In order to rely on the implied duty of fidelity in these circumstances, the employer would have to demonstrate that it has suffered significant harm as a result of that activity. This can be difficult to establish. Therefore, if an employer is concerned about an employee working for a competitor outside of working hours, it should consider inserting an express clause into the contract of employment.
A blanket exclusivity clause may not, however, be enforceable because an employee is generally entitled to work elsewhere in his or her spare time. However a clause preventing an employee from working for a competitor during their spare time is likely to be enforceable provided it is not drafted too widely. Exclusivity clauses should therefore be carefully drafted to ensure that they go no further than is necessary to protect legitimate business interests. For example, much will depend on the employee’s role, seniority, access to confidential information, the similarity of the two jobs being performed and the industry.
It should be noted that any clause seeking to prohibit a zero hours worker from working for anyone else is unenforceable and employees and workers have the right not to be unfairly dismissed or subjected to a detriment because they failed to comply with an exclusivity clause.
48 hour working week
It is likely that under the Working Time Regulations all the hours an employee works during the week would be aggregated for the purposes of calculating average weekly working time. An employee may only work 16 hours a week for one employer, but could be working 35 hours a week for another employer. This would then bring the average weekly hours to 51. If the employee hasn’t opted out of the 48 hour working week, it is quite possible that the employer(s) could be liable for a fine, a notice from the Health and Safety Executive and/or tribunal compensation for failing to comply with the limits on working time. An employer is also required to keep records of working time, for at least a two year period, for anyone who hasn’t signed an opt-out agreement.
It is therefore prudent to require your employees to inform you if they have a second job, or even to request consent to work elsewhere, so that you can then monitor and record their working hours or ask them to sign an opt-out agreement if that is necessary.
It can be tempting to take disciplinary action against an employee who is on sick leave and yet still working for another employer. Whilst this would certainly need investigating, it does not necessarily follow that a dismissal or any disciplinary action would be fair. In the case of Perry v Imperial College Healthcare an employee with two jobs 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 based job. Such cases are however rare and usually working elsewhere would indicate that the employee is not truly unfit to attend work with the main employer.
Given all of the above, it may be wise for employees to be required (perhaps in a policy or their contract of employment) to disclose any other work, including the name of those employers and their working hours. This would then alert the main employer to any potential risks and appropriate action could be taken in good time.