Fair dismissal for employee who concealed dual employment

Our team looks into a case that saw an employee fairly dismissed for concealing dual employment.

In a recent case, the Employment Tribunal found that an employee who concealed the fact that she was working two jobs for the same employer, in breach of the Working Time Regulations 1998 (‘WTR’), was fairly dismissed from one of the roles.

The case involved a cleaner who worked 40 hours per week in a day shift role at a bank, and 37.5 hours per week in a night shift role at the Houses of Parliament. In total, she worked 77.5 hours per week, which was a clear breach of the WTR. The employee knew this was a breach of the WTR and repeatedly concealed the fact that she had two jobs.

Originally, the employee worked for two different employers. However, the arrangement was uncovered when her day shift employer took over the cleaning services at the Houses of Parliament, and her night shift employment transferred under TUPE. She was suspended without pay and later dismissed from the night shift role.

She brought claims for unfair dismissal (arguing that she should have been made redundant), wrongful dismissal relating to unpaid notice, and unlawful deduction of wages for the period of suspension.

The Employment Tribunal sided with the employer and rejected her claims, stating that the employer had clear health and safety and public interest considerations, particularly as the role involved night work.

The WTR limits night work to an average of eight hours in any 24-hour period, and requires workers to have a rest period of at least 11 consecutive hours in every 24-hour period (although workers may choose to opt out and work additional hours). Employers must take all reasonable steps to ensure compliance with the WTR and may face criminal liability for failures relating to night work.

What should employers do?

Increasingly, employees may attempt ‘polygamous working’ – the practice of holding two full-time jobs, often concealing this from their employers. This risk is heightened by the perception that AI tools make such arrangements more feasible.

Employers should:

• include explicit provisions in employment contracts requiring employees to disclose any work for third parties
• issue regular reminders to staff about this obligation
• put in place written working time opt-outs, bearing in mind that signing is the employee’s choice
• monitor working hours to ensure compliance with the WTR when a second role is reported.

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