Is your remote worker two timing you?

First published: June 22nd 2023
Last updated: June 22nd 2023

There’s a growing trend of employers seeking to reduce the amount of remote work they’re using in their operations.

One of the biggest challenges employers encounter with remote workers is managing productivity.

While some staff struggle to switch off from their busy workloads when working from home, others find themselves underworked and available for nixers that they can do during their contractual working hours.

This raises a number of difficult issues from both a contractual and employment law perspective.

What’s the problem with staff working a second job?

A double jobbing employee raises a range of HR implications including:

• payroll and tax issues
• health and safety issues related to excessive working time, and
• breakdown in trust where staff are working a second job without their employer’s knowledge.

What are the contractual implications of a remote employee working a second job?

The answer to this question depends on what has been agreed in the employment contract. If the employment contract is silent on the employee working a second job, there will be no breach of contract.

Most employment contracts however do include an hours of work clause setting out that the employee must dedicate their full attention to their duties during specific hours.

If a remote worker chooses to work a second job during those contracted hours, the employee would be in breach of the employment contract.

Is the employee bound by an exclusive service clause?

Lots of employers include an exclusive service clause in their employment contracts. Employees who are bound by such a clause typically must first seek their primary employer’s consent before taking on work for a second employer.

Working time rules

Most employers cite their obligations under the Organisation of Working Time Act 1997 as the rationale for exclusive service clauses. Under working time rules, employers must take proactive measures to ensure that employees don’t work an average of more than 48 hours per week over a 4-month reference period.

You may even be in breach of the working time legislation if a remote employee is working elsewhere without your knowledge.

The legislation places a positive obligation on the employer to take steps to ensure their employees aren’t working excessive hours.

New regulations on exclusive service

The Government quietly passed the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the Regulations) just before the end of 2022. The Regulations state that employers must not prohibit an employee from taking up employment with another employer, outside the work schedule established with the first employer.

The 2022 Regulations also provide that an employer shall not subject an employee to adverse treatment for taking up employment with another employer outside the work schedule established with the first employer.

You could therefore find it difficult to prevent the employee from taking up a second job if they complete the work for the second role outside their contractual working hours with you as their existing employer.

Under the Regulations, as an employer you would need objective grounds like health and safety (excessive working hours) or a conflict of interest to justify prohibiting an employee from taking up a second role outside their working hours with your business.

How to handle an employee you suspect is double jobbing

If you suspect one of your employees is working on your time, you may need to consider how you monitor the employee’s activity while they are working remotely.

Employees generally don’t appreciate being micromanaged so you will need to handle this carefully and let them know that you will be in contact with them more frequently to monitor performance.

Some larger employers use software to monitor employee activity. You should proceed with caution before putting such a policy or software system in place. Employees would need to have their attention drawn to this policy before it is put in place. The policy would also need to address numerous HR and employment law issues like remote work, GDPR, working time and how it intersects with the grievance and disciplinary procedures.

Should you have clear evidence that an employee is working a second job in breach of the terms of their employment contract, you may need to take disciplinary action.

Bear in mind that any sanction or other policy you develop to deal with a double jobbing employee should be reasonable and proportionate to the breach. If the employee’s second job is not interfering with their performance or your business operations, you need to carefully consider an appropriate response.

Expert guidance from a qualified HR professional

A double jobbing employee could cause problems in your business if you’re not sure how to handle the HR and employment law implications.

If you’re concerned about your remote workers taking on a second job on your time, speak to one of our HR experts and we’ll guide you through the right steps to protect yourself from risk.

Speak to one of our HR experts now on 1800 719 216