Cost of Living Crisis: Are your employees wanting to take up a second job?
Released On 19th Aug 2022
It is only when you really think about the phrase 'Cost of Living Crisis' that it hits home just how bleak it is. I am certainly no economist, but understand that when broken down into simple terms, the 'Cost of Living Crisis' refers to the fall in 'real' disposable incomes caused principally by high levels of inflation and recent tax increases eclipsing pay-rises. It is therefore no surprise that we are starting to hear reports of some employees wanting to take on second jobs (or as the cool kids say 'side hustles') in a bid to earn some extra cash.
So what’s the legal position in this situation:
The law does not prevent employees or workers from having a second job or even setting up their own business in their free time. However, as an employer you must be mindful of whether the employee or worker is working over the 48-hour maximum average weekly working limit, stipulated by the Working Time Regulations 1998 (WTR). If they are, (or if there is a chance that they may), then you will need to ask them to sign a WTR Opt-out agreement. The effect of a such an agreement is what it says on the tin – it means the 48-hour maximum average weekly working limit will not apply to the employee or worker, until such time as they opt back in.
Without a signed WTR Opt-out agreement, you must take all reasonable steps to ensure that the employee or worker is working within the 48-hour maximum average weekly limit, otherwise you run the risk of receiving legal claims for breaching the WTR.
From a contractual perspective, you may have clauses in your employment contracts that prevent employees or workers from working in second jobs; especially should such a job involve working for a competitor or otherwise create a conflict of interest. If an employee has breached such a clause then it may be a disciplinary offence. However, if the second job does not cause you a concern, you may decide, depending on the circumstances, to grant retrospective permission for the employee to undertake it.
Often contractual clauses governing working in second jobs will include wording that says that the employee or worker can work in a second job if the employer grants prior permission, and that such permission will not be unreasonably withheld. This is typically seen as a more fair and reasonable way of dealing with the situation, as it requires the employee or worker to put the employer on notice of the second job. This means that the employer has an opportunity to ascertain what steps it may need to take in order to comply with the WTR, as well as assess any likely conflict or other concerns. If there are none, then you would be expected to grant permission. You should then keep the position under review, perhaps every 6 months, to ensure that the second job is not impacting upon the employee’s or worker’s performance or attendance, or creating health and safety issues.
Lastly, you may recall a previous e-bulletin we sent about the ban on exclusivity clauses in zero-hour contracts. In essence, this explained that it is unlawful for employers to prevent zero hour workers from working in other jobs. So please do bear this in mind when you are reviewing your contracts and ensure that you have a WTR opt out agreement on file, signed and dated by the employee or worker.
If you would like your contracts reviewed or if you would like us to assist you with drafting a WTR Opt-out agreement for your use, please do not hesitate to get in touch with a member of the Employment Team.
