Staff taking second jobs – the legal implications – legal dilemma

It has recently come to light that one of my employees has taken a second job to pay her mortgage. Unfortunately, this is affecting her work with us as she is often tired and late for work. Can we approach her about it and, if it continues, consider firing her?

You should approach this employee initially on an informal basis. You should explain that it has come to your attention that she is often late and tired. If this is affecting her performance then this should be raised, giving precise examples if possible. If there are any health and safety issues about her being tired at work, such as working with machinery, this should also be mentioned. There may be Working Time issues if the two jobs take her over the 48-hour working week limit. If this is the case the employee should be asked to sign an opt out.

The employee should be warned that if unless there is sufficient improvement then she could face disciplinary action for her lateness or performance, or both. The employee should be advised that this is serious and that if she does not improve then this could eventually lead to her dismissal.

You should advise her that you will be monitoring the situation and expect an immediate improvement. If there is no sufficient improvement then you should hold her a formal disciplinary meeting. You will need to write to her inviting her to the meeting, telling her why, the potential outcome and advising her of her right to representation This could potentially result in a final written warning if there is no improvement at all although it is advisable to give a first written warning initially. The warning should set out that unless there is a satisfactory improvement this could lead to a final warning and potentially dismissal in due course.

If the employee has less than 51 weeks’ service you could dismiss immediately without going through this process. However, you would have to pay notice. You should also consider whether this is the best option. Would a word with the employee resolve the issue? This would save you the expense and time of recruiting a replacement and if there are no other issues with this employee you may be able to sort this problem and move forward.

Stuart Jones, employment partner, Weightmans

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