Legal Implications of Working Two Jobs | DavidsonMorris (2024)

Given the current surge in the cost of living, many employees may either be looking for a pay rise or, if their existing employer cannot offer more money, they may instead be looking to take on a second job. The current cost of living crisis will inevitably force more and more staff into double jobbing than ever before, where working two jobs could even become the new normal. But what are the legal implications of working two jobs?

In this guide for employers, we explain the practical and legal implications of employees working two jobs, and the rights of the employer and employee when it comes to double jobbing. We also look at what steps can be taken by the employer where taking on secondary employment is in breach of contract, together with best practice advice on how to minimise the risks involved.

What is meant by secondary employment?

The expression ‘secondary employment’, also commonly referred to as ‘double jobbing’, simply describes a situation where an employee takes on a second job. This means that they will be working under separate contracts of employment for two different employers at the same time, albeit they will necessarily be contracted to work different hours for each employer.

An individual may choose to take on secondary employment for all sorts of different reasons. For some, working a second job could be out of financial necessity, where many employees now need to seek out a supplementary source of income to help cover the increase in food and fuel bills. In other cases, taking on two jobs could be providing the employee with an opportunity to learn new skills or gain experience to progress their careers.

What are the practical implications of working two jobs?

Whatever the reason(s) for staff wanting to work two jobs, there are various practical implications arising from this, including whether double jobbing will create any conflict of interest for the employer’s business, for example, where a competitor could be gaining an advantage by staff moonlighting. This could be because an individual has a certain skillset that could be utilised by a competitor, or where there is a risk of confidential and sensitive data being leaked to a competitor that could damage the employer’s business.

If a member of staff is working two jobs, there is also the very real and obvious risk that this will have a negative impact on performance for example, where staff are overworked and tired from working long hours, this can quickly affect employee engagement and productivity.

There is, therefore, plenty of commercial impetus for employers to want to manage or, at the very least, be made aware of when an employee has a second job.

What are the legal implications of employees working two jobs?

In addition to the practical implications that can potentially arise for the employer in relation to secondary employment, there are also a number of important legal implications of working two jobs that must be taken into account, including whether double jobbing could:

• pose a potential risk to health and safety in the workplace, for example, where tired and overworked staff are far more likely to make mistakes and cause accidents, posing a risk to their own health and safety and that of others;
• cause the employee to be working contrary to the statutory requirements under the Working Time Regulations 1998, for example, where the employee may be working beyond the maximum weekly working time limit and may not be getting the required rest breaks.

When it comes to working hours, employers are under a statutory duty to ensure that their staff do not work in excess of the maximum weekly working limit. By law, most workers are not permitted to undertake more than an average of 48 hours a week, normally averaged over 17 weeks, unless they have opted out of these provisions in writing. When calculating the average hours worked, this must include the worker’s combined hours from both their primary and secondary employment, where the responsibility for ensuring that an individual does not exceed the maximum weekly working hours lies with both employers.

Under the 1998 Regulations, there are also strict rules around daily and weekly rest breaks, where workers have the right to 11 consecutive hours rest between shifts, for example, if they finish work at 8pm, they should not be required to start work again until 7am the next day. Workers additionally have the right to either an uninterrupted period of 24 hours each week without any work or an uninterrupted 48 hours each fortnight.

The biggest challenge, therefore, is that staff may be working beyond the weekly working time limit and may not be getting the required rest breaks by having two jobs. The Working Time Regulations were introduced to protect health and safety in the workplace, where tired and overworked staff are far more likely to make mistakes and cause accidents. This could mean that an employer is not only in breach of their statutory obligations under the 1998 Regulations but also their duty to ensure the health, safety and welfare of anyone affected by their business activities under the Health and Safety at Work etc Act 1974.

In certain sectors, such as healthcare, or where staff are required to operate machinery, human error caused by exhaustion can be life threatening. The risk of stress-related illness, together with absenteeism and staff turnover rates, can also significantly increase if staff work long hours, leaving the employer potentially liable for the consequences of this.

What are an employee’s rights around working two jobs?

It is not illegal to work two jobs at the same time, where the law in the UK does not prohibit people from taking secondary employment. This means that, absent any contractual provision within their contract of employment, an employee is entirely free to take a second job.

Even though many standard employment contracts will include a provision that prohibits an employee from working in competition with their current employer, it is not as common for a contract to seek to prohibit an employee from working from someone else altogether. In many cases, however, the contract will require the employee to notify their employer if they decide to work two jobs. In this way, an employer can take steps to ensure that the employee either signs an opt-out agreement and/or their hours are reduced to meet the 48-hour limit. The employer can also take steps to ensure that staff have adequate rest breaks in-between shifts.

What are an employer’s rights in respect of double jobbing?

An employer’s rights, when it comes to an employee working two jobs, will again come down to the terms and conditions of the employment contract. For example, if the contract contains a non-compete clause prohibiting the employee from working for the same or similar business during the term of their employment, then the employer is perfectly within their rights to seek to enforce that clause if an employee takes on secondary employment with a competitor.

However, most employers would not usually seek to prohibit their staff from undertaking any form of secondary employment. Typically, they would only require that an employee notifies them of any second job so that they can manage their average working hours and rest breaks accordingly. In these circ*mstances, where an employee is required to notify the employer of any second job, and the hours undertaken each week, any failure to do so could again provide the employer with a legitimate basis on which to take action against the employee.

Can an employee be dismissed for working two jobs?

If the contract contains a non-compete clause prohibiting the employee from either working directly or indirectly for a competitor, then it is open to the employer to instigate disciplinary proceedings, potentially with a view to dismissal depending on the circ*mstances.

Working for a competitor, in breach of any contractual provision, goes to very root of the employment relationship, and the implied duty of mutual trust and confidence. In most cases this will justify a decision to dismiss. Equally, if the employee is contractually required to notify their existing employer if they take on a second job, and the employee fails to do so — thereby exposing the employer to a risk of breaching their statutory obligations around working time, rest breaks, and health and safety — this too could justify a decision to dismiss.

In theory, the same principles apply to breach of any contractual provision prohibiting an employee from working two jobs whatsoever, although whether dismissal, as a disciplinary sanction, would be reasonable in all the circ*mstances will depend on the facts of each case. If the employee is forced to take a second job out of financial necessity, and any secondary employment does not conflict with or prejudice the commercial interests of the employer’s business, then it may be more appropriate to provide the employee with a written warning.

Employers may also want to carefully reconsider the potential negative impact of any blanket prohibition against their staff working from someone else in the current economic climate.

Can an employer prevent an employee from getting a second job?

At the commencement of employment, within any statutory confines, the parties are free to agree all kinds of contractual provisions when it comes to their respective rights and responsibilities. This means that, provided the new recruit agrees, the employer is free to incorporate a contractual provision which prevents that individual from getting a second job.

This may be because the employer is looking to maintain high levels of employee engagement, ensuring optimum levels of performance and productivity, especially from senior members of staff who are being paid well to devote all of their time and energy to the one business. It could also be because the employer is looking to minimise the legal risks around maximum weekly working hours and rest breaks, as well as risks to health and safety.

However, in the existing economic climate, where many employees are being forced to look for additional work to top up their existing income levels, unless an employer can afford to provide their staff with a suitable pay rise, seeking to enforce any contractual prohibitions around secondary employment can result in a disgruntled workforce and even loss of staff. Having this type of contractual prohibition can also lead to low recruitment rates, where candidates may be easily put off working for a business if they feel overly restricted.

What best practice advice should employers follow for double jobbing?

As having a ‘side hustle’ is becoming an increasingly popular move for employees, it is important for employers to know how to best deal with this, especially if their current workplace rules prohibit having a second job or place onerous restrictions on double jobbing. After all, if an employee’s current wage is not sufficient to cover the cost of living and the employer is unable to provide its employees with a pay rise, by placing unreasonable prohibitions on taking a second job is only likely to lead to the loss of valuable members of staff or, at the very least, a disgruntled workforce and poor employee engagement.

Still, managing secondary employment is important, to ensure that the employer does not fall foul of the law when it comes to ensuring the health and safety of its staff and anyone else affected by its business activities. It is also important when its comes to ensuring that employees do not exceed the maximum weekly working limit and take adequate rest breaks.

To mitigate the practical and legal implications of working two jobs, employers should ideally aim to foster an environment where staff feel comfortable discussing other work, rather than imposing prohibitions that can create a culture of secrecy. For example, by avoiding blanket prohibitions on secondary employment, while emphasising the importance of notifying the employer of any second job and the reasons for this, staff are less likely to want to hide any side hustle and more likely to openly discuss their working schedule. In this way, employers will be better able to maintain safe working practices while giving their staff the freedom to earn additional income throughout this current cost of living crisis.

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DavidsonMorris are specialist employment law advisers to businesses. For expert advice on the legal implications of employees working two jobs, contact us.

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Last updated: 4 March 2024