Can Employees Take a Second Job During Furlough Leave?

Year Published: 2020

Many of the millions of Britons on furlough leave have opted to take a second job. Some are picking fruit and vegetables to support the British harvest, while others have been taking second jobs in supermarkets. But what are the restrictions to taking a second job whilst on furlough leave?

Can My Employees Work Elsewhere During Furlough Leave?

Taking a second job while on furlough leave is permitted, as confirmed in the guidance from the Government on 4th April 2020, however it must be subject to the terms of the contract between you and your staff

Until the beginning of August 2020, an employee who is currently on furlough cannot undertake work for the employer which has furloughed them. The ‘primary employer’ cannot require their furloughed employees to do any work for them or for any linked or associated business. Nor can a furloughed employee receive any remuneration for work done for their primary employer (obviously, this does not apply if furlough has ended before August 2020).

As of August 2020, furloughed employees will be able return to work for their primary employer on a part-time basis.

It is vitally important to remember that, if your staff are furloughed, they are still employed under their existing terms and conditions during furlough (with some obvious exceptions such as the requirement to attend work etc.).

Contractual Restrictions on Working Elsewhere

Any enforceable restrictions on working elsewhere during their employment will continue to apply in the same way they would if the employee was attending work for you. If your contracts of employment state that employees cannot work elsewhere without your consent, that rule still applies during furlough.

However, in the current circumstances, you may consider temporarily relaxing any such restrictions to allow employees to take up a role with a non-competing business with your prior consent.  You may also want to consider temporarily revising the terms of their contract or perhaps redrafting it, if necessary.

Perhaps, more importantly, if there are ‘restrictive covenants’ prohibiting your employees from working for competitors, these will still apply during any period of furlough leave too.

Other Practical Considerations

Your staff should still be available to undertake training (for your organisation) during furlough leave. Realistically, this probably won’t take up much of their time, but it might be important if you have to train them on matters which are essential prior to their return. Therefore, an alternative job could ‘get in the way’.

Generally speaking, those on furlough leave that are allowed to accept a second job should only work outside of the hours they would normally work in the job that they have been furloughed from, unless you have provided prior consent to do otherwise.

In addition, when furlough leave ends, your furloughed employees will need to be able to return to work for you right away. Therefore, you may wish to consult and enter into a revised agreement with your employees in respect to gaining your consent before taking up any alternative employment; you may also require employees, if/when they start working for another employer, to confirm their furloughed status in Statement C of the PAYE starter check-list they complete for their new employer.

Have more questions regarding furlough leave? Read our FAQs on Furlough Leave.

If you would like assistance on breach of employment contracts, please contact our Associate Solicitor, Nicola Moulds, on 0161 475 1207 or email [email protected].

For further guidance on reviewing or redrafting contracts, or to discuss whether to agree to second job requests, please contact Katie Hodson on 0161 475 7670 or email [email protected].

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