Have your employees started asking if you will allow them to take on a second (or third) job? As we all prepare for a winter of energy and other price rises, we have seen an increasing number of clients come up against this question.

Money remains largely a taboo subject and one about which employees may be reluctant to open up. An employee may ask to take on a second job because they are adept at managing their finances and want to boost their income in anticipation of higher bills. In many cases, however, it is likely to be an indication that they are struggling financially. No matter the employee's motivation, the issue of multiple jobs raises a host of HR, wellbeing and health and safety concerns.

Exclusivity clauses

On being asked by an employee if they can take on a second job, your first thought might be to check the wording in their contract. Some employment contracts prohibit employees from doing so; others require the employee to seek consent. This type of clause is known as an exclusivity clause. Bear in mind that exclusivity clauses are unenforceable if they are in the contract of a zero hours worker. They will also soon be unenforceable for workers whose average earnings are on, or below, the lower earnings limit (currently £123 per week). If workers in these categories breach an exclusivity clause, they will be protected from unfair dismissal (with no qualifying period of service) and from detriment.

It will not only be those who are lowest paid, or on the least secure types of contract, who are worried about making ends meet over the coming months. So, where you have an exclusivity clause that is (in theory) enforceable, you will have to decide whether to enforce it or give consent to employees taking up a second (or third) job. This is likely to involve weighing up the organisation's interests against the needs and welfare of your employees. If the organisation is unable to offer any form of financial help, do you object to employees taking on extra work to pay the bills?

Work with a direct competitor will cause more concern than a second job that is unrelated to their role. You may want to consider a policy or guidelines for the type of second job that is permissible. As ever, it is important that decisions on these requests are consistent and made fairly, to avoid the risk of discrimination complaints.

Wellbeing

Financial worries have a significant impact on employees' overall mental and physical health and wellbeing. We have previously shared insights on some of the ways in which employers can support employees' financial wellbeing. It is equally important to ensure managers are on the alert for signs of stress and burnout, just as they were during the height of the pandemic. As with so many employment issues, creating a supportive culture and fostering open dialogue between employees and line managers is key. This is the case whether or not an employee takes on a second job. Managers may need to take particular care where they know an employee is working multiple jobs. They should take into account the exceptional circumstances caused by the cost of living crisis when, for example, dealing with a dip in the employee's performance. Keep in mind too that the stress of being unable to make ends meet, if you withhold consent, might be just as detrimental as the strain caused by working multiple jobs. Both scenarios have the potential to lead to increased absence levels.

It would also be advisable to remind employees of the general wellbeing support your organisation offers, such as access to employee assistance programmes. With businesses feeling the pinch as well, now may not feel like the right time to invest in new initiatives. Taking preventative steps, however, such as training mental health first aiders, may be a prudent long-term investment.

Health and safety

There may be health and safety implications in allowing a worker to take on another job. Do they work with heavy machinery? Do they drive as part of their role? If their work falls into one of these, or similar, categories, it does not mean you are bound to refuse the request. However, you should consider reviewing your risk assessments and whether to introduce extra supervision or breaks. Taking the health and safety considerations a step further, does the employee drive to and from work? Employers do not have an explicit duty of care to employees on their commute but the lines on this began to blur during the pandemic. Support for staff as they get to and from work can play a part in fostering the organisation's culture and values.

Compliance perspective

The guidance on the Working Time Regulations indicates that the 48-hour limit on average weekly hours applies to an individual's total working hours, if they work more than one job. If you agree to an employee taking on a second job, you should ask them to sign an opt-out agreement or advise them to ensure their weekly hours do not, on average, exceed 48 hours. It is a criminal offence for an employer to fail to take reasonable steps to comply with the limits on working time, or keep the necessary records.

Secret second jobs

If an employee does not seek consent before taking a second job (or does so despite you withholding consent), this is likely to be grounds for disciplinary action. Much will depend on the wording in your contracts and the extent of the obligation to obtain consent. Is your agreement only required where the duties are similar or where the second employer is a competitor? As always, it is important to follow a proper and reasonable process. You must also ensure that decisions on this type of situation are consistent. If the decision-maker is considering dismissal, they will need to reflect on whether that is a reasonable sanction. This includes examination of the wider circumstances, which will encompass not only the employee's length of service and previous disciplinary record, but also the social context of the cost of living crisis.

Webinars

There are no easy answers for employees and organisations during these turbulent times. If you are interested in exploring this topic in more detail, watch out for details of our forthcoming webinars:

• 21 September 09:30: we discuss the Great Resignation, including steps you can take to retain and recruit staff, such as support during a cost of living crisis; and
• 23 November 09:30: we consider ESG in the context of HR and employment law, including the Social imperative to support employees' wellbeing, financial and otherwise.