Your liability for any long hours your employees work – even if that includes a second job

Working time regulations are designed with health and safety in mind, but this can be a challenge when workers have multiple jobs, says Phil Allen, partner at national law firm Weightmans.

In 1998 the Working Time Regulations were implemented to protect health and safety in the workplace. The legislation sets the rules for the maximum average working week, minimum rest breaks, paid annual leave and the amount of time legally required between each working period. But fast forward 20 years and the employment market the regulations govern is now very different. Inflation and declining real wages have prompted many to seek out a supplementary source of income, challenging management teams to proactively mitigate the legal risks caused by workers who voluntarily take on too much. Employers that do not keep tabs on the hours their staff work elsewhere can be left liable.

It is an issue that is particularly pertinent for the energy and utilities sector. Utilities that employ large, 24-hour, shift-based workforces to operate, maintain and manage their plant and facilities need to be especially vigilant. Tired or overworked staff are more likely to make mistakes – which can be life-threatening for workers operating machinery. The risk of stress-related illness – and the legal claims associated with it – also rises significantly if staff work long hours.

The most important thing for employers in the energy and utilities industry to remember is that the responsibility for ensuring a worker has had enough rest to safely carry out their duties falls firmly at their feet – even if the worker has a second job. The key to achieving this, and successfully avoiding the damaging commercial and reputational implications of a legal challenge from an overworked employee, is to have as clear a view of the entire workforce’s working life as possible.

Encourage staff to disclose information about second jobs

Under the Working Time Regulations, an employee 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if they are happy to do so, the worker can agree in writing that they will work longer hours (this consent can be withdrawn on notice).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 one of their employees has 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. Firms that ignore other work undertaken by their staff will not meet this obligation. However, an exception to this would be if the worker deliberately misled their employer about what else they do.

Even with consent, the limits exist to protect the health and safety of employees. Being unaware of the total amount of time a staff member is working carries genuine risk. 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 the employee in question had agreed to it.

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 any other jobs they have. For some roles where confidential information is given, an outright ban on other work is appropriate. However for most roles in the industry, this approach can create ill-will, is hard to police, 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. However, they need to bear in mind that any information exchanged could breach data protection obligations unless it is done with the worker’s full consent. This course of action should not be used unless it is completely necessary.

As having multiple jobs becomes more commonplace, it is increasingly important that employers in the utilities sector invest thought, time and resources into ensuring that they know about the working time of those they employ. Having a clear view of this will help employers maintain a safe, happy working environment that encourages productivity and safeguards against legal risk.