New working trend develops in COVID-19 pandemic

03/09/2021

During the COVID-19 pandemic, a new working trend has developed. A small, yet significant group of employees in industries ranging from tech, insurance, recruitment, and banking, have found a way to double, and in some cases, triple, their pay by simultaneously working two or more full-time remote jobs.

For most employees who take on a second job, it is out of financial necessity. But whatever the reason, several important issues arise for employers to be determined:

  • Is there a conflict of interest between the jobs being undertaken by the employee and the business? 
  • Does the additional job have a negative effect on the employee’s performance, engagement, and productivity?
  • Will the employee be too tired from the multiple jobs and pose a health and safety risk as a consequence?

What the law says about additional jobs

The law does not preclude employees from having two jobs, but employers should know they could be in breach of Working Time Regulations if their employees do not get the necessary rest breaks and are working more than 48 hours per week. This is averaged over a 17-week period when calculating average hours, and time taken as sick leave or statutory annual leave does not count.

These working time limits are important and have been set to protect the health and wellbeing of employees, preventing them suffering from extreme fatigue and avoiding accidents.

So, what can employers do?

If you suspect an employee has an additional role, you should ask them about it. This will allow you to consider whether or how it affects your business and the employee’s performance. If you find they are working a second job, ask them if they will sign an opt out agreement. This essentially discharges an employer’s obligations under the Working Time Regulations. Any hours worked that surpasses the 48-hour time limit do not apply if the employee has agreed to opt out. If the employee refuses to agree to opt out, you will need to find other ways to make sure they are not surpassing the 48 hours weekly limit.

Many employers insert provisions in employment contracts that the employee must not be involved in any business activity which affects their ability to devote their entire time to their role, or which conflicts with the business’s interests without prior consent of the employer. Each business and company will have different expectations and policies regarding non-competitive agreements.

In line with the trend for second jobs, the Government completed a review in February 2021 into whether non-compete clauses remain appropriate in the new post COVID-19 and post Brexit world. Although, at the current time of writing, this would appear to apply only to post-termination competition; the risk for wider application of restrictive covenants to second jobs remains a concern.

It is an important distinction that anyone employed on a zero-hours contract cannot be excluded or prevented from taking on work with another employer, and if such provisions are contained within an employment contract, they are unenforceable.

More information

For more information or advice on non-competition clauses or opt-out agreements, please contact our employment team here.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2021.

03/09/2021

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