Advo HR Consultant Jess Hall takes a closer look at the implications of Secondary Employment from an employers’ perspective.

Whilst we may only have just started the month of October, as we know Christmas will be here before we know it. This time of year often sees a spike in temporary or seasonal work. With that in mind, along with rising costs in utilities and food, you may well become aware of individuals seeking secondary employment.

From an employer’s perspective, it is important to understand the implications of secondary employment for a number of reasons including protecting the business’ interests, maintaining productivity and wellbeing and managing any risks.

Firstly lets consider the legal considerations. You may hear us HR professionals say frequently to check the contract and that would be our advice here too. What does the contract state? Does it state that individuals should seek prior approval before commencing any secondary employment or does it restrict this entirely? It is important to note though that an employer shouldn’t unnecessarily ban secondary employment or have this as a blanket ban. It is also very important that any refusals to allow secondary employment are not linked to any protected characteristics as you could open yourselves up to a discrimination claim.

The type of contract you engage individuals on matter too. For example, those on true zero hours contracts have the legal right to take on secondary employment under the Employments Right Act 1996 due to exclusivity clauses being unenforceable.

The Working Time Regulations 1998 also places a restriction of a maximum 48 hour working week on workers and employees unless they voluntarily chose to opt out of this in writing. Here at Advo we would advise that within your contract you clearly state that the individual must ask for prior approval but must also inform the employer of any other employment which may mean that they exceed the exceeding an average of 48 for each seven-day period over a reference period of 17 weeks.

If an individual does hold secondary employment and has not opted out of the maximum 48 hour working week, it would be advised to request a record of their working hours across both/all roles to ensure the total hours worked does not breach the statutory weekly limit. Ultimately it is the responsibility of both employers to ensure the legalisation is adhered to.  This could also impact employees’ wellbeing if they are working more than one job.

It is also important to reference Health and Safety at Work etc Act 1974 which states that employers have a general duty to ensure, as far as reasonably practicable, the health, safety and welfare of their workers and employees. If secondary employment causes fatigue for example and this contributes to a workplace incident, an employer could be exposed to liability for failing to assess and manage the associated risks.

Other things to consider include:

• Conflict of interest – if an individual works for a competitor this could cause issues with regards to confidentiality and would be a risk to the employer
• Misconduct matters – an individual may spend time or resources during the time you pay them for their secondary employment
• Data protection – if an individual was to use the same technology across two or more employers, this could increase the risk of sensitive of confidential data being shared to third parties in error or used incorrectly.
• Regulatory and reputational risks – if an individual is subject to professional code of conducts or more specific rules regarding their sector, this may also impact or pose more stringent rules regarding secondary employment which may have negative reputational risks

As you can see from the above there is lots to consider. If you have a specific question regarding the above or if you would like to know more about how we can support you with your HR needs please speak to your Advo contact.