I have an employee who I found out is moonlighting elsewhere after he finishes work with us, I am worried he is working too much. How do you stop an employee from working too many hours?
The Working Time Regulations 1998
set various rules about how many hours an employee can work. It sets, among other things, limits on working hours per week, and details minimum rest periods and rest breaks that must be provided. These are given to ensure an individual’s good health and safety.
Obviously you can keep yourself informed of how many hours your staff are working for you, but what about the very many employees who have more than one job? You can’t control how many hours they work elsewhere.
Technically, if an employee works two jobs, it is the responsibility of both employers to check that the employee is not working more than the limits set out in the Regulations. The main limit on working hours is an average of 48 hours per week, generally calculated over a 17 week period.
To check that this is not being breached, you should ask all of your employees that they need to tell you if they have another job when they start working for you, or if they take up another job whilst working for you. You should also ask for details of the working hours that are worked in total.
If this total would breach the limit when calculated in the prescribed way, then action should be taken. You could get your employee to sign an agreement which signifies their consent to working more than the average 48 hour week. This is known as an ‘opt out’ agreement. You cannot force an employee to sign this agreement, and to dismiss for refusal to sign the agreement would be an automatic unfair dismissal.
If they refuse to sign the agreement, then you should take reasonable steps to ensure that their working hours do not exceed the limit. This may mean contacting the employee’s other employer to ensure that, between you, the employee is not working too many hours. You need only take reasonable steps, however, and if they employee is not willing to pass information about their other employer to you, then your steps are limited.
Stricter provisions apply if the employee is below 18 years of age.
Should you need any further clarification on this issue then contact the Peninsula Advice Service on 0844 892 2772.