What can be done about moonlighting?

With the cost-of-living crisis ongoing, more and more  people are considering taking a second job (or third, or fourth, for some) to make up the shortfall at the end of the week or month. As an employer, should this be a concern to you, and is there anything you can do to restrict the amount, or kind, of extra work your employees take on?

Limits on Working Hours

The 48-hour working week limit applies to all time spent working, regardless of the employer. If an employee has more than one job, it is important for the employer to be aware of it; to keep accurate records of their working hours; and to take steps to prevent the employee from working more than 48 hours/week (unless they have opted out of the cap). Even where employees have opted out of the cap, employers need to keep accurate records and do what they can to ensure that employees are getting adequate breaks from work.

Overwork may impact on employees’ wellbeing,  their performance at work and, particularly in some roles, could have serious health and safety consequences (for them or others). Early conversations are key if problems arise, but the approach should be supportive and solutions-focussed, bearing in mind that financial worries can also have a significant impact on wellbeing and simply insisting that they drop their other work may not be feasible.

Conflicts and Competition

Clearly, if an employee is doing work for someone else (or for their own business) during the hours they are contracted to work for another employer, they will be in breach of their employment contract. They could face disciplinary consequences, including potentially dismissal, and deductions from their wages (on the basis that they were not "ready and willing" to work for their employer, as they were doing other work at the time – this is of course subject to the employer having the right to make deductions in the contract).

All employees are subject to an implied "duty of fidelity". This is a multi- faceted duty but certain of its elements are particularly relevant here. Firstly, it includes a duty not to compete with their employer (although note that this implied duty does not extend beyond termination of employment). Simply working for a competitor may not amount to a breach, if the employer is not actually harmed by it: working as a shop assistant at two different supermarkets is unlikely to amount to a breach, for example. However, the implied duty of fidelity also comprises a duty not to solicit the employer’s customers and suppliers, not to entice their employees away, not to act in a position of conflict of interest and not to use or disclose the employer’s confidential information for their own (or a third party’s) purposes. 

However, it is advisable to include an express term in your employment contracts if  you want to limit the work your employees are doing for others (or themselves) outside of their working hours, so that they know exactly where they stand. This might be a blanket prohibition on undertaking any work (or having any interest in) any other business, trade, profession or occupation, without the employer’s prior written consent.

Whilst consent should not be unreasonably withheld (as that could amount to a breach of mutual trust and confidence, if refusal was entirely unjustified), this gives the employer a significant degree of control over the employee. Alternatively, the employer may be content with a clause that simply requires the employee to notify the employer of their involvement in any other business, or that prevents them for working for a competitor without the employer’s consent.

Remember that the risks are not all one way: if, by working for you, your employee is breaching their contract with another employer, you could be at risk of claims from that employer for inducing the employee’s breach of contract.

This could be because they are working for you when they should be working for their other employer, or because they are in breach of a restriction preventing them from working for a competitor, for example. You cannot be liable for inducing a breach of contract if you did not know that working for you would place the employee in breach of their contract with their other employer.

However, litigation can be expensive and time-consuming, and it is best to resolve these issues at the outset . To mitigate against the risk, employers will often include a clause in their contracts where the employee warrants that undertaking their duties for that employer will not place them in breach of any contractual obligation they owe to any third party.