This time the experts, Esther Smith and Martin Brewer give their advice on an employee working two jobs.
The question: Working time directive and two jobs
If one of my employees has requested to work in secondary employment, if they are likely to exceed working 48 hours per week over both jobs, are they required to sign an opt out form held by us within their file?
Legal advice:
Martin Brewer, partner, Mills & Reeve
This is covered by regulation 4 of the Working Time Regulations which essentially says that a worker cannot work more than an average 48 hours in each 7 day period. This is subject to certain exemptions, the most common being that the worker has opted out of this provision which he or she can do under regulation 5.
Nothing in regulation 4 expressly requires that hours worked for different employers must be aggregated when calculating the average 7 day period working time. However, it is to be noted that the guidance on the Working Time Regulations issued by the government says that regulation 4 requires that all working time to be counted, not just time worked for a particular employer.
The guidance says this:
"If a worker is known to have a second job, an employer should ask the worker to consider signing an opt-out agreement if the total time worked is in excess of 48 hours a week. If a worker does not wish to sign an opt-out in this situation, the worker should consider reducing their hours to comply with the 48-hour limit."
It follows that if you do have concerns about the working time of employees with second jobs and you are a risk-averse employer, you should first consider requiring workers to confirm if they work for anyone else and, second, if they are, get them to sign an opt out.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
**************
Esther Smith, partner, Thomas Eggar
Yes! An employer is responsible for ensuring compliance with the Working Time Regulations even if part of the work that is being undertaken is being done for another employer.
The reason for this is that the Working Time Regulations are essentially health and safety provisions, rather than pure employment provisions, and therefore there is an overriding obligation on an employer to ensure the safety and wellbeing of its employees.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
