How can businesses deal with ‘overemployment’?

Mark Callaghan and Raoul Parekh explain what employers should do if a member of staff is holding down two full-time remote roles

The shift to almost permanent remote working in some industries has prompted countless changes to the way that employees work and interact with each other and management. Some enterprising employees have taken things a step further by using the shift as an opportunity to become ‘overemployed’ – and, in that process, very well-paid. 

We’re not talking here about employees who openly work on their side-hustle in the evenings, or who work two part-time jobs at different times of the day or week. Rather, the overemployed are those that work two full-time jobs without either employer finding out about the other. It’s increasingly common in roles that are often entirely remote and inherently task-based, such as computer programming. 

Some see overemployment as disingenuous or immoral, but its proponents believe they are freeing themselves from a corporate world that is stacked against them, while also gaining opportunities to diversify their skillset, reduce boredom and achieve a (considerably) higher income. Entire websites provide guidance on how readers can ‘work two remote jobs’ and ‘achieve financial freedom’.

Why is this trend occurring now? 

The pandemic has created more remote jobs, of course, but it’s also had an emotional impact on the people working them; employees now feel less connected to their colleagues and more jaded at work compared to pre-pandemic. In addition, a tight labour market has meant more vacancies and perhaps even less aggressive performance management. So employees suddenly find themselves with the means, the motive and the opportunity.

The legality of overemployment is a potentially thorny issue, although employers with well-drafted employment contracts should have clear protection to take appropriate action, should an employee be caught in the act. The contractual documents that employees sign in the UK are generally more prescriptive than in the US, where the overemployment movement is centred, leaving less wiggle room for employees to exploit. 

Certainly, most well-drafted contracts will include an express prohibition on ‘outside interests’ – in those cases, taking on a second, unapproved role will constitute a clear contractual breach and justify disciplinary action. The same will generally be true for contracts that set out the employee’s core hours of work, and which expressly require the employee to devote their time and energy to their role during those hours. Even for those without such clauses, any non-compete clause may apply during employment as well as after it (although that will be of less help if the two roles are in entirely different or non-competitive fields) and the summary termination provisions may also refer to dishonest or unethical behaviour. 

For employers who do not have express clauses limiting the employee’s behaviour, they may need to look to potential breaches of an implied term. The employee’s implied duty of good faith and fidelity is the most likely of these to apply, which provides in very basic terms that an employee has an obligation not to act in a way that is contrary to the interests of the employer. It may also be that the employer could establish a further implied term that the employee will not work a second job simultaneously, if they can show that such a term is either entirely necessary for business efficacy, or so obvious that it goes without saying.

This is untested ground, but our money is on summary dismissal being justifiable for most clear-cut cases of overemployment, absent a reasonable misunderstanding or other extenuating circumstance. 

The bigger challenge for employers is probably detecting instances of overemployment in the first place. Overemployed employees are generally performing skilled, complicated work, and are not subject to the heavy monitoring that might be routinely implemented for data entry or call-centre workers. There are also plenty of resources provided by the overemployment community to help avoid detection. Where an employee is already suspected of overemployment, the tax code assigned to the employee by HMRC might hint at a second job, but a large employer is unlikely to rely on that as a primary form of exposure. 

Employers who have a high-risk workforce may therefore wish to rethink their ‘on trust’ approach to monitoring, and will likely be able to point to a legitimate interest in doing so (thus heading off any data protection or constructive dismissal concerns). However, such an approach risks engendering the very mistrust and disengagement that drives employees to take on a second role in the first place. A better approach might be to return to the basics: ensure employees feel connected and motivated by their work, make sure the content of your roles matches the people you have filling them, and focus on building a connected and responsible workplace culture. 

Mark Callaghan is an associate and Raoul Parekh is a partner, both at GQ|Littler