Double Time

Aisling McAuley

Polygamous working is a term used for employees who have more than one job. Here Solicitor Apprentice, Aisling McAuley, looks at the implications.

This is not as you might imagine being busy with several wives. Polygamous working is a phrase to describe the situation where an employee might have two full-time jobs with two full-time salaries, thus not being able to fulfil either role properly.

Having two jobs might not be unusual where, for example, someone works 9am to 5pm in their main role and then moonlights in an evening job. Indeed, this is quite common for many during the cost-of-living crisis.

Polygamous working can be hard to detect, particularly as working from home has increased over the years. However, having two full-time jobs can cause significant issues for both the employee and employer.

An individual may stretch themselves across two full-time roles, not performing either role adequately which might have serious consequences, for example, where health and safety issues are concerned.

Employees may be sued for overpayment of wages by an employer where they have not fulfilled their contractual obligations because of a role with a different business. The police may also become involved in what amounts to a fraud. The National Fraud Initiative helps to identify polygamous working and the overpayment of wages in the public and private sectors.

Employers must consider their obligations under the Working Time Regulations (WTR). In the absence of an opt-out agreement, it must be ensured that workers do not work more than the statutory limit of 48 hours a week on average. There will be issues around retaining adequate records as by its nature the other role will be done without the employer’s knowledge and permission. Employers could face sanctions under the WTR.

Issues may also arise around confidentiality where an employee might be working for a competitor.

There may be obvious indicators of polygamous working such as a decline in performance and engagement, absences and lack of availability.

Employers might consider the following:

1. Ensuring appropriate and adequate pre-employment screening, including references.
2. Making clear the company’s position on second jobs in offer letters.
3. Contracts of employment should require employees to devote their whole time and attention to a role and there should be no ambiguity around what is expected of them.
4. A contract might require an employee to disclose a second job or prohibit this by including an exclusivity clause in the employment contract. However, such a clause would only be valid if the employee earns more than the lower earnings limit. Exclusivity clauses will also be void in zero hours contracts.
5. A contract of employment should contain the usual confidentiality and where appropriate, intellectual property provisions.
6. Monitoring working from home might also be a solution but this in itself brings its own difficulties.
7. Consider dealing with these issues sensitively and openly where they arise, there is likely to be a distinction between employees who are in genuine financial difficulties and those who are abusing the system.

Holding down two jobs is possible, indeed moonlighting is quite common, and acceptable where there are no conflicts of interest, and an employee is not asleep with exhaustion during the day. There is a line which will be crossed though where an employee juggles two full-time roles.