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HR tip: Moonlighting

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These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.


Question:

"Can we prevent our full-time employees from taking on evening work with other employers, for example taxi driving?"

HR tip:

Really there are only three common circumstances in which you can impose a restriction on your employees without interfering with their freedoms under the Human Rights Act.

First, if they were to work for a competitor they would be in breach of their implied contractual duty of fidelity and, if they persisted, you could dismiss them for breach of contract.

Second, if they turned up for work tired or made an unacceptable number of mistakes such that their work performance was unacceptable, then you could take disciplinary action against them and require them to rectify the problem.

And third, if their combined employments meant that they worked in total more than the 48-hour maximum average working week set out in the Working Time Regulations, you would need to have them reduce the hours they work for you or for the secondary employment to bring them within the limit, or have them sign an opt-out agreement.

You might consider putting a clause in your contracts of employment saying something like: "You must obtain permission of the company before undertaking work for another employer, and such permission will not be withheld unreasonably".

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One Response

  1. Moonlighting

    It seems to me that there are three things wrong with this tip.

    Firstly, it cannot and should not be assumed that a dip in performance is the result of secondary employment. It could be a quite unrelated issue, or a combination of issues, including within the workplace.

    Secondly, this is surely a capability procedure issue rather than a disciplinary one.

    Thirdly, there appears to be a misinterpretation of the Working Time Directive. It does not exist to prevent secondary employment but to protect an employee from excessive demands made by an employer. The WTD Regulation 4 simply does not include provision for an employer to gatekeep the cumulative total of hours worked resulting from multiple employment, even if the UK Government ‘guidance’ is to so do. The 48 hours over 17 weeks relates to work under the control of an employer.

    HR policies should not conflict with the Right to a Private and Family Life, one of the 16 basic principles of the Human Rights Act. If it does you should review the policy.

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