Many employers have exclusivity clauses in their employment contracts stating that the employee cannot work for another employer, whether on a paid or voluntary basis, without the employers express permission. But where do you stand on enforcing this?
Many employers have exclusivity clauses in their employment contracts stating that the employee cannot work for another employer, whether on a paid or voluntary basis, without the employers express permission.
So, can an employer prevent an employee from taking a second job in their spare time or dismiss them if they did? It is likely that any dismissal on these grounds would be unfair unless of course the employer had followed a proper procedure and it could demonstrate that:
- taking the additional job might result in damage to the employer’s business interests, i.e. if the employee wanted to work for a competitor; or
- if the employee were working elsewhere there would be a real risk that they wouldn’t be able to perform their first job adequately or safely – maybe because of incompatible hours or because the employee would be working too many hours to safely undertake their first employment – e.g. if employed in a driving job or operating machinery.
Another obvious consideration, in addition to these competition and performance issues, is the Working Time Directive (WTD) – would the employee be working more hours than they were allowed to (assuming they had not signed a WTD waiver)?
For all of these reasons it would be prudent for employers to make clear to employees that although they don’t object to them holding another job outside of their normal working hours (so long as they are not working for a competitor and so long as it doesn’t affect their ability to perform their first job) they are required to advise the employer of the proposed additional role before accepting it. This would permit the employer to evaluate the role and its impact on the employee’s first job. It would also permit employers to consider the WTD implications and, where necessary, ensure that the employee has completed a waiver form.
As ever these requirements should be contained in well drafted employment contracts and the working for others clause should be pointed out to the employee on induction. myHRdept draft employment contracts from £300, or as a normal part of services for retained customers (for whom we are also happy to produce actual offers and contracts as they recruit staff.)
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