Anne Lyne

We have been hearing about the pandemic trend known as the “Great Resignation”, where workers are looking to leave work, change their lives or reflect on how they want the workplace to work for them in light of the “new normal”.

Another workplace trend to emerge in the last number of months is the concept of “overemployment”. This is where employees working from home with undemanding jobs have decided to take on a second job during core work hours. It is not a situation where an employee is working longer hours and taking on a second “evening job”, but rather where an employee is choosing to “double job” out of financial necessity or to maintain a certain lifestyle.

If working well for the employee, it is a way of earning additional income while still having free time to spend it.

Is double jobbing allowed by law?

From a contractual perspective, unless an employer specifically precludes an employee from working elsewhere, an employee can work two or more jobs.

Having said this, most contracts have core hours set out (the traditional 9-to-5) where an employee is required to dedicate their full-time care and attention to the job during those hours. Working in secondary employment during these hours would, in this case, be a breach of the contract of employment.

Some contracts go further and have an “exclusive service” clause which prevents an employee from working for a different organisation without the express consent of the primary employer. This type of clause is prudent, as under the Organisation of Working Time Act 1997 an employer is required to ensure that an employee does not work more than 48 hours maximum per week calculated over a four-month period (albeit with limited exceptions).

This provision is strictly interpreted. An employer may fall foul of the provision if an employee is working elsewhere, even if the employer does not know about it. Notably, the legislation provides that an employer “shall not permit” (emphasis added) an employee to work more than 48 hours maximum per week. This places a positive obligation on the employer to take steps to ensure their employees are working in accordance with the Act.

So, what other issues may arise?

A key concern for employers is tax which may result in a net balance of tax owing to Revenue and the employer did not deduct the tax due.

There is also the risk that although double jobbing may seem manageable for the employee, it could lead to a significantly increased workload and, by extension, an increased risk of employee burnout and claims of stress or overwork arise.

At the core of the employer-employee relationship is trust and it does not sit well with most employers that staff may be working elsewhere unbeknown to them.

What can an employer do?

If an employer suspects a staff member may be double jobbing it may be open to an employer to consider monitoring employees more frequently – in this context, GDPR must be considered. As with most workplace matters, the key for an employer is to ensure that there are adequate policies in place to deal with these issues, including clear contractual clauses, a remote working policy, GDPR policy, working time policy and disciplinary policy.

If an employer has evidence to support the double jobbing in breach of the contract of employment it may consider disciplining an employee. The matter should be approached like any other potential workplace disciplinary matter, with a clear process followed.

Case law provides that any sanction in respect of double jobbing must be proportionate – as such, a “zero tolerance policy” may not be the appropriate approach in relation to double jobbing, particularly where the additional work is not having a significant impact on the business or on the employee’s job performance.

• Anne Lyne is a partner at Hayes solicitors LLP. This article first appeared in the Business Post.