Letter asking about secondary work

If an employee is undertaking secondary work without your knowledge or permission, it could put them in breach of their employment contract and you in breach of the 48-hour maximum average weekly working time limit. If you believe an employee is working elsewhere, our letter asks them to provide details of what they’re up to. From there, you can decide what you’re going to do about it.

Contract breach

The first reason why you might want to know about secondary work is because it could put your employee in breach of an outside business interests or second jobs clause in their employment contract, under which they’re required to specifically declare other employment or self-employment and to have their manager’s prior written permission to undertake it. See our Outside Business Interests Clause for our detailed contractual provisions on secondary work (although note that our clause is unenforceable if it’s in the contract of a zero-hours employee, or an employee whose net average weekly wages don’t exceed the lower earnings limit). Our Letter Asking About Secondary Work sets out that it’s come to your attention that the employee may be undertaking secondary employment or work and then it cites the provisions of our outside business interests clause. You can amend the wording here to reflect what your own clause says, if it’s different to ours.

Working time

The second reason for asking about secondary work is that if your employee does have a second job which means they’re exceeding the 48-hour maximum average weekly working time limit set by the Working Time Regulations 1998, you’ll either need them to sign an opt-out agreement or you’ll need to take whatever steps are necessary to ensure they’re within the working time limit, e.g. asking them to reduce their working hours either with you or with the second employer. It’s your statutory duty to “take all reasonable steps” to ensure that the working time limit is complied with. Whilst you don’t need to positively ask all your staff about other employment, if you do have grounds to suspect an employee has a second job, you may be found not to have complied with the Regulations if you turn a blind eye. So our letter cites compliance with the working time limit as the other reason for making your request for information about secondary work.

Secondary work information

Our letter then asks the employee to provide written details of any other work they may be performing, either as an employee, a worker or in a self-employed capacity. In particular, it asks them to provide the name and address of the second employer (if applicable), the type of business in which the second employer is engaged (or the nature of the self-employed activity), the type of work they’re involved in, their hours of work and their work location.

Disciplinary action

If it transpires that the employee does have another job or self-employment, potentially that’s a disciplinary offence if it puts them in breach of their employment contract and any outside business interests clause. So you’d be justified in taking disciplinary action. It could even amount to gross misconduct if the work that they’re doing is for a competitor, or is otherwise in competition with your business or causes a serious conflict of interest. Your other option, where you don’t have an issue with their secondary work, is to grant your employee retrospective permission to undertake it. Just ensure you’re being consistent and can justify your reasons why in some cases you would propose to take disciplinary action and in other cases you wouldn’t.