The Working Time Regulations are designed with health and safety in mind, but this can be a challenge for employers when workers have multiple jobs, says Phil Allen, Partner and employment law specialist at Weightmans LLP.
When the Working Time Regulations were formally introduced in 1998 the UK’s employment landscape looked very different. In recent years, inflation and declining real wages, have prompted many to seek out a supplementary source of income. While this is understandable, it can cause a real headache for employers. Today, management and HR teams need to work hard to proactively mitigate the legal risks from workers who take on too much.
The Working Time Regulations lay down the rules which govern the maximum average working week, minimum rest breaks, paid annual leave, and the amount of time legally required between each working period. What is important to remember is that the Regulations were introduced to protect health and safety in the workplace. This health and safety risk does not go away because the worker has a variety of jobs.
Tired or overworked staff are more likely to make mistakes. In certain sectors, such as healthcare, human error caused by exhaustion can be life threatening. The risk of stress-related illness (and claims) increases significantly if staff work long hours, and employers that don’t keep tabs on the hours their staff work can be left liable. Doing this effectively is even more challenging when a worker has two jobs. The onus is still on an employer to ensure a worker has had enough rest to safely carry out their duties, even when they have another job.
There is also a commercial impetus for managing the number of jobs a worker has. If staff are overworked, productivity can be damaged and, if they have a specific skill set, a competitor could be gaining an advantage by your staff moonlighting. For all organisations the key to avoiding this, and the wider legal risk, is to have as clear a view as possible of their employees’ working lives.
Encourage staff to disclose information about their other jobs
Under the Working Time Regulations, a worker must not work more than 48 hours a week on average. However, if they are happy to do so, the worker can agree in writing that they will work longer hours (this consent can be withdrawn on notice). This is a common feature of many employment contracts. What may often be overlooked, however, is that the 48-hour maximum applies to the working time of each worker, irrespective of how many jobs they have.
Without written consent gained in advance, an employer can be in breach of the Regulations because of the time they’ve worked for another organisation. Consent given by the worker to their second employer does not cover their arrangement with the first. The Regulations state that an employer must take all reasonable steps to ensure that the 48-hour limit is adhered to. Organisations that actively ignore other work undertaken by its staff will not meet this obligation, but this wouldn’t necessarily apply when the worker deliberately misleads the employer about what else they do.
Even with consent, the limits exist due to health and safety considerations and ignoring the total working time of a staff member can be a high-risk approach. It will be difficult to defend a claim arising from an accident at work if the worker has worked more than 70 hours that week, no matter which employer it was for and whether they agreed to it.
Mitigate the risk
To mitigate this risk, employers should aim to cultivate an environment where staff feel comfortable discussing other work openly. Contracts and procedures should require staff to tell an organisation about other work undertaken. For some roles and sectors an outright ban on other work is appropriate. However, this approach can create tension and ill will, is very hard to police at a junior level, and may be unrealistic – especially given the current employment landscape. Employers should encourage staff to be open, rather than have a culture of secrecy. When an organisation identifies genuine cases of excessive working time, they will need to be addressed.
If an employer wants to check what a member of staff has told them about their second job, they can get in touch with the worker’s other employer – but any information exchanged is likely to breach data protection obligations unless it is done with the worker’s full consent. This course of action shouldn’t be used unless it’s completely necessary.
Under the Regulations workers are entitled to 11 consecutive hours’ rest in any 24-hour period, a 20-minute break if the working day is longer than six hours, and two full days off per fortnight. Workers cannot waive these rights in their contracts. While the Regulations don’t clearly stipulate that an employer is obliged to monitor if rest breaks are observed across jobs, the commercial, health and safety, and personal injury risks of not doing so still exist.
Breaks and gaps between jobs are harder to monitor and enforce than total working time. However, good contractual provisions and policies should still ensure employees disclose this information if they have more than one job, so that real issues can be addressed.
A few special circumstances
The rules are more stringent for workers under the age of 18. They are considered more vulnerable in the eyes of the law, so the Regulations expressly state that working limits cover the aggregate time of all their jobs and that lower limits apply (8 hours a day or 40 hours a week). Because of the added risk, employers must proactively limit instances where cumulative working time could be exceeded for this group. The rules relating to night workers, who cannot work more than an average of 8 hours in each 24-hour period, may also require greater scrutiny and steps taken to ensure adherence.
As having multiple jobs becomes more commonplace, it is increasingly important that organisations invest thought, time and resource into ensuring that they know about the working time of those they employ. Having a clear view of this will help them maintain a safe, happy and productive working environment.