By Natasha Smith, Senior Associate
As a result of the ongoing cost of living crisis, it is becoming increasingly common to hear of staff securing second, third or even fourth jobs in order to supplement their income levels.
Whilst on the face of it, employers might be relatively understanding of the need for their staff to secure additional sources of income (particularly where they are not in a position to increase remuneration themselves) such a practice does raise a number of employment issues that employers should be aware of and where necessary, take appropriate steps to act upon.
Implied into every contract of employment is a term that the employee will serve their employer with good faith and fidelity. This includes a duty not to compete with the employer until employment ends and even extends into the employee’s non-work time.
However, the extent of this implied duty is less onerous during non-work time and only applies where the competitive activity could cause serious harm to the employer. As a result of this ambiguity, it is advisable for employers to include express contractual terms which set out what employees are permitted to do outside of their work hours.
Employment contracts often state that an employee can work elsewhere whilst employed, provided they have sought the express permission of their employer first. If employees do not seek permission, the employee will be in breach of contract and the employer could terminate the contract or instigate disciplinary action against the employee for damaging the relationship of trust and confidence.
An extreme case recently reported by the National Fraud Initiative involved an individual who was undertaking two full time jobs whilst working from home. It also discovered a period where this individual was working for one organisation, when claiming to be unfit to work at the other. Once discovered, the individual was dismissed by both organisations and is now facing a claim for the repayment of wages.
Aside from this, an employee who has taken on alternative work could also potentially be working for the employer’s competitors. Employers may therefore find themselves in a situation where their reputation is being damaged or where confidential and/or sensitive information is being passed on to a competitor, which is clearly not ideal.
Again, employment contracts should clearly set out what information will be classed as confidential and what the employee is permitted (and perhaps more importantly, not permitted) to do with that information.
Another area employers should watch out for is employees exceeding the limits on weekly or daily working hours that are set down by the Working Time Regulations 1998. These limits are in place to protect health, safety and wellbeing.
Whilst individual employers are primarily responsible for ensuring their own staff are not exceeding the maximum number of weekly hours (which is 48 hours per week over a 17-week reference period for most jobs), ultimately all working time is counted as an aggregate. Therefore, it is beneficial for employers to have a 48-hour opt out clause within the contract.
Finally, employers should be mindful of the potential for the employee’s productivity or performance levels to slip as a result of the employee being overworked and stretching themselves too far by covering too many jobs.
This can be a tricky area for employers to manage but, given the current prevalence of various initiatives to improve well-being at work and support employee’s mental health, the steps taken by employers to instigate any kind of formal process against an employee who may be struggling in their personal lives may only exacerbate a bad situation in their work life.
What is clear is that there are a number of factors arising out of the cost of living crisis that are having a significant impact on the way in which we work and employers need to keep on top of this development and ensure they are doing all they can to both protect their business and the individuals who work for them.
If you would like to discuss the potential legal issues for employers managing employees who have other jobs or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.
This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.
