I blogged about side hustles back in November 2022 in the context of a tribunal claim which concerned an employee who was running her cake-making business whilst on sick leave. The topic of employees having second jobs/second sources of income doesn’t look like it will be going anywhere soon with the persisting cost of living crisis.

Statistics are showing that there has been an increase in the number of employees working second or multiple jobs. Statistics are also showing that employers are fearing that their employees’ second jobs are posing a risk to their businesses. I am not surprised.

I have heard anecdotally of employees working a 9-5 full-time job for one employer in one sector and then doing care work during the night for a completely different employer in the care sector. There are only 24 hours in the day but some employees are desperately trying to make every one of them count.

Employers are right to be concerned and I think it is reasonable and safe for employers to know whether staff are doing second jobs and to have a policy as to whether that is going to be permitted, and in what circumstances.

Just a few of the important reasons employers should know about second jobs (and consider if this is something that you, as an employer, will allow) include:

• The Working Time Regulations 1998 - weekly maximum hours limit of 48 hours

If the employee has not opted out of the cap, you need to know how many hours they are working elsewhere to monitor whether the cap is going to be breached. A worker can opt out of the 48-hour working week by entering into an agreement with their employer. However, you still need to ensure that the opt-out agreement is set up correctly. We regularly see contracts that have opt-out clauses within them and in our view, this would not hold up in court as an enforceable opt-out agreement.

• The risks to your organisation and the people you support 

Many of our clients, particularly in the health and social care sector, support and care for vulnerable and elderly people. The CQC will not tolerate care falling below the fundamental standards. It goes without saying that if an employee is not well rested, they will not do their best job. At worst, they could carry out a negligent job which could lead to significant harm to others, themselves and colleagues, and could lead to severe financial, reputational, regulatory and legal consequences for your organisation.

• Protection of confidentiality and business interests

Lots of employers have restrictive covenants that take effect on an employee once their employment has ended. But what about during employment? In the same way, you wouldn’t want an employee working for a competitor after employment, you wouldn’t want them doing so during employment.

I recommend that employers think carefully about this topic and consider whether their contracts, handbooks and policies need to be reviewed and updated. Do note however that exclusivity clauses in zero-hour contracts are still unlawful. Further, the ban was extended in December 2022 to the effect that exclusivity clauses are also prohibited for workers earning less than the lower earnings limit (currently £123 a week). This means that for a zero-hours worker and/or a worker earning less than £123 a week, any contractual term saying that they cannot work anywhere else will be unlawful and unenforceable.

If this is an issue that your organisation is grappling with and/or you’d like to discuss how best to prepare for it arising, do not hesitate to get in touch with Hannah Bollard.