As the cost of living continues to rise amid a combination of high inflation, increasing energy bills and an increase in interest rates we consider some of the key issues that should be on an employer’s radar.

A survey undertaken by Indeed Flex earlier this year indicated that almost a third of UK workers are planning to take a second job to supplement their income during the crisis. So, what should you do as an employer if you discover that your employee has started working for another employer, or if your employee is seeking permission to do so? 

Consent to work for another employer

An employee’s employment contract may contain express provisions which deal with an employee taking on a second job. The contract may prevent the employee from taking a second job, or it may prevent them from working with a competitor. In some instances, the contract may state that an employer’s consent is required prior to the employee accepting a second job.

Specific considerations apply in relation to a worker who is employed on a ‘zero hours’ contract. Any provision of a ‘zero hours’ contract will be unenforceable against the worker if it prohibits them from:

• doing work or performing services under another contract or under any other arrangement, or
• doing so without the employer’s consent.

If an employee is seeking your consent to take a second job, it’s important for you to consider the nature of the second job and if this might affect their ability to perform their duties under their current role. Other issues you might need to consider are whether that employee has access to confidential information and/or whether they propose to work for a competitor. In the current economic crisis, a reasonable approach might be to permit them to take a second job, if their needs and financial wellbeing outweighs the company’s interests. Alternatively, it is also worth considering whether you are paying an appropriate rate for their services, and whether you have any financial room for manoeuvre in this regard.

Should you permit an employee to take a second job, you may wish to obtain the employee’s assurance that the second job will not affect their ability to properly perform their duties under their current contract. If they have access to confidential information, it may be appropriate to consider bolstering certain confidentiality provisions in their contract or reminding the employee of their existing obligations, if those obligations are sufficient.

What if an employee secretly takes a second job?

In addition to any express contractual provisions in their contract, an employee owes certain implied duties to their employer such as a duty of fidelity and an implied duty of trust and confidence. If you have valid concerns that the employee’s second job causes a conflict of interest or concerns about breaches of confidentiality, or if an employee is dishonest about taking a second job, then it may be appropriate to take disciplinary action. However, any disciplinary action should be handled carefully by having regard to any mitigating factors which may stem from the cost of living crisis.

What about working time obligations?

An employer has an obligation to look after the health and safety of its employees pursuant to the Working Time Regulations. In the context of an employee working for more than one employer, the employer should ensure that a worker's working time in each seven-day period should not exceed an average of 48 hours (unless the employee has signed a valid opt-out agreement). This is an important consideration because the total number of hours an employee works for all employers will count for the purpose of assessing compliance with the weekly limit. Reasonable steps should be taken to ensure the limit is complied with or the employer should ask the worker to enter into an opt-out agreement that the 48-hour limit should not apply in their case. Failure to take reasonable steps to ensure compliance with this weekly limit could result in a criminal sanction on the employer.

General wellbeing considerations

As well as the health and safety impact of working additional hours, employers may wish to consider the reasons behind a worker’s decision to take a second job, including financial worries. If your organisation is unable to offer financial support, non-financial support should be considered. Non-financial support would include reminding employees of any wellbeing support your organisation offers, such as access to employee assistance programmes. You may want to signpost employees to any additional benefits your organisation may offer such as discount shopping vouchers or childcare vouchers.

Some employers are helping in other ways, such as:

• reassigning pension contributions to help employees save up for a house deposit
• providing free meals to staff – note that this can also have tax benefits
• providing counselling services for employees
• providing training for those in supervisory positions to ensure they can support their staff
• income tax-free cash allowances under the Working from Home allowance
• partnerships with financial health platforms.

Some employees may look to spend less time at home and more time in the workplace if this might help them reduce their energy bills. For other employees, travelling to work may be too costly because they cannot afford to pay for travel or childcare. This may lead to your organisation receiving an influx of statutory flexible working requests, each of which should be considered on its facts. Supporting employees to work from home to reduce their costs or adopting a more flexible approach to working patterns may help them financially.

If you have any questions in relation to the above or if you would like employment law advice, please contact: Arta Fagan and Kathryn Dooks.

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