Everyone loves a hard worker. A dependable employee with a strong work ethic who isn’t afraid to ‘put in the hours. But what a member of staff is spreading themselves too thinly? If a member of staff takes on a second job or even multiple jobs (not uncommon in this tough climate) you may need to take steps to protect both their health and your business interests.
To some extent what an employee does in their own time is their own concern. If they can comfortably fit unrelated work around their primary role, why not let them get on with it? Problems can arise though where an employee takes on too much or is effectively in competition with their employer.
Even if an employee does not work exclusively for you, you are obliged to take ‘all reasonable steps’ to ensure that they comply with the 48-hour limit on weekly working hours under the Working Time Regulations 1998. If you know or suspect that an employee has a second job you should ask them to confirm their total weekly hours. If they are exceeding the statutory limit you will need to ask them to sign an ‘opt-out’ (this may already be included in the contract of employment, although it is best to agree an opt-out separately). If working time is excessive you should consider asking the employee to give up their second job or reduce their hours (especially for drivers, machine operators or other safety critical roles). They may not heed your advice, and enforcement of working time rules is rare, but you should protect your position by having the conversation.
An employee who is burning the candle at both ends may simply be too tired to do their best at work. Concentration, productivity, and attention to detail may suffer. Regular appraisals and a close eye on timekeeping should flag up any problems at an early stage. If fatigue or distraction is really impacting performance you can, of course, address this under a formal capability procedure. Don’t jump in ‘feet first’ though. Unless there is an imminent risk, give the employee the chance to make changes to their extra-curricular working before you take action.
If you’ve found out that an employee is doing other work while off sick, consider the nature of their second job before you take action or presume that they are doing something wrong. If the jobs are very different, they may have an argument that they’re too sick for one but not the other.
For more information, read our guide to managing working time.
The real risk is where an employee is ‘moonlighting’ for a rival business or working on their own account in competition with you. As well as wasting your time and money (if engaged in these activities during working hours) the employee may potentially be using your know-how and resources to damage your organisation. In the worst-case scenario, the employee may even be diverting business away from you, or preparing to do so. You’ll be reassured to know that you can take disciplinary action in this situation. Although it’s important to act quickly, take care to gather all relevant evidence and follow a fair procedure and give the employee full opportunity to explain their actions.
As ever the contract is your first line of defence. To pre-empt problems, you may want to say that employees cannot take on other jobs (although bear in mind that this is unlawful for zero-hours contracts that don’t guarantee a minimum amount of work). If this sounds heavy handed you could perhaps prohibit staff from taking on second jobs without permission – allowing you to assess risk on a case-by-case basis. Most contracts also contain a provision requiring the employee to devote their ‘whole time and attention’ to their work for you. Asking employees to disclose any other work or business interests at recruitment stage is also a good idea to encourage honesty and transparency from the outset.
Any employment lawyer will tell you that it’s best practice to include in the contract a robust set of ‘restrictive covenants’ preventing employees from taking advantage of confidential information and tempting away staff, clients or customers.
Such restrictions can be difficult and expensive to enforce (and only really ‘kick in’ when an employee leaves) but setting clear contractual parameters will hopefully act as an effective deterrent and put you in the strongest possible position if you need to challenge a ‘moonlighting’ employee.
Don’t worry though if you’ve already discovered that an employee is competing with you, and their contract does not contain sufficient restrictions. It is implied that employees owe a ‘duty of good faith’ to their employers and should act in their best interests. If the employee is very senior, they may even be subject to an additional ‘fiduciary’ obligation to safeguard the interests of the company. You are entitled to expect your staff to ‘give their all’ and to put your business first.
If you have any questions or concerns about an employee carrying out extra work outside your business, please speak to your usual HR Rely advisor, who will be happy to help you.