Employers need to stay on top of staff taking second jobs

But when should you tell your main employer that you have another job?

That’s one of the questions which followed a recent Employment Tribunal, the ruling from which is a timely reminder to employers of their legal obligations around working hours.

The key issue under consideration was whether it was fair to have dismissed an employee from one job for exceeding legal working time limits by holding two jobs – both for the same company.

The tribunal ruled that it was, given that she was working combined hours in excess of those allowed under the Working Time Regulations.

In what was a complex case, the claimant transferred to the employment of the respondent under a TUPE transfer from her former employer in 2018.

She was employed by them as a cleaner at the offices of a bank in London for 40 hours per week (8am-5pm Monday to Friday).

But she was also contracted by a third-party to carry out cleaning at the Houses of Parliament (10pm-6am Monday to Friday).

In a complicated turn, that third party was taken over by her daytime employer last year (2024). Her contract for that role therefore also transferred to the respondent.

The respondent did not know that the claimant had been carrying out that work. When they realised, they were concerned about the hours. They suspended her without pay until the termination of her Houses of Parliament contract last October.

The claimant brought claims of unfair dismissal, redundancy pay and unlawful deduction from wages.

Under the Working Time Regulations 1998 (WTR), working time is limited to a 48-hour average per week, usually assessed over a 17-week period, unless an opt-out agreement is in place. Workers have various rest entitlements as part of that, including specific entitlements around night working.

After hearing evidence, the tribunal ruled that dismissal from one of the roles was fair. The other claims were also dismissed.

While the detail is complex, the reminder prompted by the case around legal obligations is relatively straightforward.

In order to show compliance with WTR limits, employers must keep records that are “adequate” to demonstrate whether, in respect of each worker, the limits are being complied with. These records must be retained for two years after employment ends.

Employers should be aware of their obligations, ensure they can show compliance, and take prompt action upon discovering non-compliance.

In sectors where employees regularly take on other work, which we often see in the likes of hospitality and social care, it is also sensible to require staff to inform their employer immediately if they have taken – or are proposing to take – another role.

It is no secret that increased energy and food bills have piled financial pressure on families, leading many to consider second jobs to bolster their income.

But, while the actions are understandable, it is important that employers do not leave themselves exposed to the legal and safety implications that tiredness can bring, both for the employee and for their wider business.

Requiring staff to inform you of second roles can ensure compliance with the WTR and with health and safety obligations. This helps protect everyone.

Daniel Gorry is a Partner in the Employment team at Lindsays