A recent case highlights the health and safety risks, and potential legal exposure, when employees hold multiple roles concurrently, particularly involving night work. An employment tribunal has found that an employee who held two jobs with the same employer was fairly dismissed from one of the jobs, after her employer found out that she was working 77.5 hours a week, in breach of the Working Time Regulations 1998 (WTR).
The employee, a cleaner, worked 40 hours a week in her day shift role at a bank and 37.5 hours a week in her night shift role at the Houses of Parliament, with breaks of only five hours in the evening and two hours in the morning. The employee had been working this shift pattern five days a week since 2008, originally for different employers. When applying for the second role, she deliberately concealed the first, because she knew it would breach the WTR.
The WTR limit night work to an average of eight hours in 24 hours. The WTR also entitle workers to a rest period of at least 11 hours in 24 hours (but workers may choose to forego this and take on additional hours). Employers must take all reasonable steps to ensure compliance and an employer may be criminally liable if it fails to do so in relation to the night work limit (and other requirements).
The employee’s dual roles came to light when her day shift employer bank took over the contract for the cleaning services at the Houses of Parliament and the employee’s night shift employment transferred to it under a TUPE transfer. The tribunal found that she again tried to conceal her other role. The employer suspended the employee with no pay and ultimately dismissed her from the night shift role, but she retained her day shift role.
The employment tribunal rejected her subsequent claims of unfair dismissal i.e. that she should have been made redundant, that her unpaid suspension was an unlawful deduction from her wages and that she was due notice pay. It emphasised the clear health, safety and public interest considerations, including the risk of mistakes due to tiredness and the long-term health implications of excessive hours, particularly where they involve night work.
Earlier this year, we explored the phenomenon of “polygamous working” i.e. where employees work two full-time jobs, normally concealing one from the other. As we highlighted in that article(here), deliberately concealing dual, simultaneous employment can amount to fraud on the part of the employee and expose both parties to significant risk.
Key takeaways
To minimise these risks, employers should review working time compliance processes:
- Require employees to declare any secondary employment and the number of hours they work elsewhere each week.
- Remind all employees at regular intervals that they must report any work they do for third parties.
- Track total hours worked across roles (including via contractors or group entities) to ensure compliance with the WTR.
- Put in place written working time opt-outs if employees may work more than an average of 48 hours per week over a 17-week period. Bear in mind that employees may choose not to opt out of the 48-hour weekly limit and they can cancel an opt-out by giving seven days’ notice (or up to three months if the opt-out provides for longer).
- Reinforce rest and fatigue management policies.
Review inherited employees’ working patterns following contract transfers to identify potential breaches early.
