Recent press reports suggest that some employees are now successfully working two jobs simultaneously. Arguably this has become more common because of the move to remote working during the pandemic, and raises some troublesome issues for employers.
‘Moonlighting’, when an employee does other paid work in their spare time, is an established problem for employers. It can have a significant impact on the employee’s primary role, whether because the employee provides specialist skills or knowledge to a competitor, or simply because their energies are being diverted.
It has been suggested that recent moves towards remote and hybrid working have facilitated the growth of a new form of moonlighting, termed ‘overemployment’. This is when an employee works two remote jobs simultaneously and balances a dual workload to receive the benefits of performing two full roles at once.
It is not that common for standard contracts of employment to contain express provisions which restrict employees taking up other employment. Often when they do, they seek to restrict working for an additional employer outside normal working hours, rather than imposing an express prohibition on taking on any additional employment at any time. Certainly it is rare to include an express provision which directly addresses overemployment. While it will almost certainly be a breach of the implied term of trust and confidence to work for another employer during normal working hours, there are some advantages to spelling out that this is not permitted in the contract of employment.
One possible solution is to provide that additional employment will only be permitted by agreement. Internal policies could explain how such requests will be handled, and spell out the circumstances in which such a request will be granted and any conditions to be attached. Such an approach may facilitate open discussions about secondary employment. This may in turn prevent an employee taking on concealed employment which results in costly and time-consuming disciplinary procedures further down the line.
To have productive discussions about secondary employment, however, an employee must be being actively managed. The reality is that, ultimately, contractual terms are no substitute for having systems in place that make it difficult for an employee working two roles at once to go unnoticed. Managers who maintain close communication with their juniors may in fact be the most effective way to combat overemployment in the workforce.
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