Can Employers Restrict Outside Work?

[MrsMozartMkII]

'Outside' as in (potentially) stopping an employee from working for another company whilst employed with them.

DD is looking to do bank work with a carehome. As there are unlikely to be enough shifts she was hoping to also do bank work with another provider, however the contract of employment says she can't unless she gets the company's express written agreement. She'll also have to advise the company if she works >48 hours a week.

I thought such restrictive practices had been got rid of?

It’s pretty normal in most contracts to have to obtain permission to work for another company, it’s for many reasons such as to stop
Conflicts of interest, make sure you aren’t working for a competitor and sharing trade secrets, make sure working time directive is adhered to, making sure people aren’t working double shifts which could be dangerous, making sure tax codes are applied correctly,
Now In many cases it’s fine and no one cares and many people work 2 jobs but it’s put in as standard so the employer can enforce it if they need to.

Thank you Brie. I'm obviously out of sync. I'll let her know.

It seems to be the norm (from my limited knowledge anyway) that care bank staff work for different companies so fingers crossed: she needs / wants the different client base for her future career a well as needing the hours.

they have, if she has a zero hours contract which is probable the following is the legal statement from the gov.uk site the last sentence is the most relevant.

Exclusivity clauses
The Small Business, Enterprise and Employment Act prohibits the use of exclusivity clauses or terms in any zero hours contract. This means an employer cannot stop an individual from looking for work or accepting work from another employer.

An employer must allow the individual to take work elsewhere in order to earn an income if they themselves do not offer sufficient hours.

If an employer includes an exclusivity clause in a zero hours contract, the individual cannot be bound by it, the law states the individual can ignore it.

An employer must not attempt to avoid the exclusivity ban by, for example, stipulating that the individual must seek their permission to look for or accept work elsewhere

Ah! Thank you Teacup. That might be where my thinking came from. I don't know if it's a zero hours one. Will poke her when she's up and give her both bits of info.

She asked me as I negotiate contracts for a living, just not contracts of employment!

any restrictive covenant as they are called has to be reasonable with a definite business risk ie poaching clients and for a reasonable length of time,
certainly a care worker seems unlikely to justify this she can hardly carry the residents to a rival as she is a junior she is unlikely to be privy to business sensitive information
it would not be reasonable to stop someone who works as a shelf stacker in tesco from working a few shifts at costa coffee or indeed at the co-op, it would be reasonable to stop the regional planning manager at Tesco from going to work at a rival

It’s also to ensure that the employee isn’t working more than 48 hours a week and is getting the rest breaks under Working Time Regulations. You can opt out of the 48 hours limit but not the rest breaks. Employers are still liable for this even if the employee has other jobs.

rest breaks are generally 8 hours between shifts however if the total shift time is less than 13 hours that doesn't apply ie working 8am-1pm the 4.30-8pm however the 11 consecutive hours rest in a day still applies so after finishing at 8pm she could not start again before 7am the next day

you can do 2 8 hour shifts without rest breaks provided you still get 11 hours consecutive break each day ie a late shift one day followed by an early shift
day 1 you get 11 hours before you work day 2 you get the 11 hours after

Our T&Cs require the company’s permission for any outside work, paid or unpaid. The rationale is that we’re the main employer and we wouldn’t want anyone doing a side job that could affect their ability to do the job with us. All of our contracts are, however, for 21 or 35 hours per week - ie not zero hours.

In the past couple of years, for example, we’ve agreed to people (i) working in a restaurant at the weekend and (ii) lecturing at a local college one evening per week. I don’t recall ever refusing permission.......... maybe if someone wanted to work five nights in a club until 3am we’d refuse on the basis that it would impact their (9-5) job with us.

Thank you all folks. Very much appreciated.

It's not a zero hours contract so now we understand that they can have the clause. DD appreciates the explanations and she'll abide by the contract

it will depend on the job it would generally be deemed unreasonable to stop an employee on a 16-30 hour contract doing more hours because your clauses can not prevent someone earning a living, in fact if she was near claiming universal credit etc the DWP would expect her to find another job and would soon say her employer could not stop her

as @Carolina said if it impacts their job you can refuse but not unreasonably if your daughter is not getting anywhere near full time hours the clause is inherently unreasonable unless the second job involves industrial sensitive information which as a care worker it won't; there is no conflict of interest at this level,
so she might need to ask but they could not reasonably stop her working as a care assistant in another home as not being management there is no business reason for this.
binding out clauses rarely stand up to legal scrutiny for junior staff, there is no way you can stop a care assistant moving to another job at a care home down the road, you might be able to stop the manager doing so
if a clause is not deemed reasonable then there is no clause

Thank you Teacup. I've checked and it's a 38.5 hours with an above min hourly rate, so should be okay. I'll tell her to check the hours bit as she does some volunteering work.

@mrs mozart yes as that is a full time contract I think they can stop her working elsewhere
The volunteering work whether guides, oxfam, or whatever does not fall into working time regulations generally

I just thought from original OP that she didn't have enough work

Teacup so did I! She thinks she needs to do more so she can save more for her Masters next year. I've pointed out that she's not yet done the whole full time work thing and it's going to be a shock to get system so maybe work up to adding to it. She was wittering about the volunteering hours, she'll send her thanks for settling her mind on that point as well

They can be difficult to enforce. I worked in a role (in HR) where we had employees on 2 or 3 day a week contracts. We said they needed to be available for overtime 'where reasonably possible' but this was hard to enforce as if someone had another job or childcare issues, then it wouldn't be reasonable of us to make them do overtime.

So we'd ask them nicely but back off if they had other commitments.

as @russellsprout says it is difficult to enforce particularly on part time workers where there is no full time job available because legally no clause can stop someone earning a living

So if on a 2-3 day contract you can't expect them to not work the other days elsewhere as you might need them the occasional extra day, however if on a 3 day contract but in practice they always get extra time then it maybe possible but if someones contract is 21 hours they can not be obliged to work more than 21 hours. so if they are needed regularly consideration has to be given to increasing contract hours
I have no idea what the position is legally when someone has requested part time or condensed hours for example when a child is young and they have been given maybe 4 condensed days or every tuesday and thursday afternoon off. I think the company could say you can't work elsewhere on the day you are not working as otherwise you need to go back to 5 standard days

There is such a clause in my contract but I am well informed that it is not enforceable, and have openly said I can’t do certain bits of extra work because I am booked to work elsewhere at that time.

I would also be rather hard to replace though...

If your employer want rid of you for whatever reason they will find a legitimate way.

no clauses can stop someone earning a living ( this is not minimum wage defined)
which is why if you are on a zero hours contract you can not be stopped taking work elsewhere or required to be always available or even available certain hours
unfortunately some employers get away with stuff because people can't afford to lose a job to keep their legal rights
legally you are supposed to give people the same length of notice as their shift to cancel it but everyone knows people who turn up at work or are on their way to work and are told to go home as not needed
if a contract is for x number of hours they have to be paid that number of hours whether they work or not so even if not needed they need to be paid X hours, however if they a company genuinely wants them available more hours they have to pay them otherwise they can't stop them earning a living by working elsewhere provided the total number of hours is under 48, over 48 they can stop you as it might affect your work with them ie too tired not enough time for rest breaks etc
so a company only employing you 9-5 Monday - wednesday (21 hours) can't stop you doing a different job the rest of the week upto 27 hours) but they can stop you doing a night shift (10pm-6am)on Monday night as you would not have had a rest break of at least 11 hour between shifts but if you did just 2 hours monday night from 6.30-8.30 that would be fine as you would still be off more than 11 hours before you started again Tuesday morning

Really useful info, thank you Teacup