Having a ‘side hustle’ is becoming an increasingly popular move for employees.
For most people who work a second job, it’s out of financial necessity. For some it’s about an opportunity to learn new skills.
Whatever the reason, several important questions arise:
- Is there a conflict of interest?
- Will a second job have a negative effect on the performance, engagement and productivity?
- Will they be too tired and pose a health and safety risk?
What does the law say about second jobs?
The law does not prohibit people having two jobs.
The big challenge for employers is that the employee may not be getting the required rest breaks and working beyond the weekly working time limit. This could mean you are in breach of the Working Time Regulations.
Working Time Regulations
In accordance with the Regulations, employees cannot work more than an average of 48 hours per week. The average is worked out over a 17 week reference period. When calculating average hours, time taken as statutory annual leave or sick leave does not count. The employee can opt out of this working week limit by agreeing to this in writing. Generally, this is done through a working time opt-out agreement. A HR Specialist will be able to help draft this.
Workers are entitled to a minimum uninterrupted rest break of 20 minutes during any working day that exceeds six hours. They also have the right to 11 hours’ uninterrupted rest in a 24 hour period and 24 hours of uninterrupted rest every week. It is up to you to decide whether you wish to organise weekly rest periods so workers take two uninterrupted 24 hour rest periods or one uninterrupted 48 hour rest each fortnight.
The importance of these working time limitations is not just for comfort, but also to protect the health and well being of employees, prevent them experiencing excessive fatigue and avoiding accidents
So what can employers do?
Both employers need to ensure that the employee’s total working hours in the two jobs do not surpass the 48 hours This does not apply if the employee has chosen to opt out.
If you think one of your employees might have another job, you should ask them about it. If they are working a second job and their working hours exceeds the weekly working time limit, you should ask them whether they agree to an opt out agreement. If they don’t want to opt out, you will need to explore ways to ensure they are not surpassing the 48 hours weekly limit.
You also need to think about whether they are working such a high number of hours that there is a health and safety risk and what reasonable steps are needed to eradicate these risks.
Many employers choose to insert a provision which states that during employment, they should not be involved in any business activity which affects the employee’s ability to devote their whole time to their role or attention during working hours, or conflicts with business interests without prior consent from the employer. The employee should give you all the relevant information, allowing you to consider how it affects the employee and your business. It also helps with your obligations under the Working Time Regulations.
Zero Hours Warning
The law doesn’t allow the use of provisions in a contract of employment which restricts someone on a zero hours contract from undertaking work with another employer. You also cannot ban them from taking work with another employer without your consent. If these provisions are in the contract, they are unenforceable.
If you would like tailored Employment Law Advice, contact your Ellis Whittam Employment Law Adviser.
