Can My Workers Work Secondary Employment When Taking Holiday Leave in England and Wales?

When your workers take paid holiday leave away from the workplace, you are likely to expect them to relax and switch off from work. However, whilst they may be switching off from work with you as their employer and their role within your business, they may decide to work elsewhere in secondary employment. Perhaps they need more money, or maybe this is an opportunity to try out a new type of job for potential future work purposes. Your workers may even carry out voluntary work whilst on holiday leave. However, as an employer, you can create rules about your workers engaging in secondary employment during holiday leave.

This article will explain the rules about your workers working elsewhere when taking holiday leave, also termed annual leave. It will explain what holiday leave is, the rules about working in secondary employment while on holiday leave, and why you may apply the rules.

What is Holiday Leave?

Holiday leave is the time taken as a break away from work as a paid holiday during the leave year. Paid annual leave refers to the same concept. The purpose of paid holiday leave is to protect workers’ health and safety and allow them to relax, rest, and engage in leisure activities away from the workplace. Most workers are legally entitled to time away from work as paid holiday leave. 

The statutory leave entitlement of paid holiday leave for full-time workers who work five days per week is 5.6 weeks per year. This is equivalent to 28 days. You can work out part-time workers’ statutory annual leave entitlement in proportion to the hours or days they work. You can offer your workers more than the statutory holiday leave entitlement, but you cannot provide them less than this.

Holiday leave includes other rights, such as the right to:

• build this up whilst on parental leave such as maternity, paternity or adoption leave;
• build this up whilst on sick leave; and 
• to take holiday entitlement and sick leave at the same time.

Can My Workers Work Elsewhere When Taking Paid Holiday Leave?

Your workers are legally entitled to take a minimum amount of paid holiday leave per year. However, it is up to you to decide whether they are allowed to work elsewhere during this time in secondary employment. There is no legal restriction on them doing so if they wish to.

Working elsewhere might be detailed in your employer’s policy on secondary employment. Secondary employment means that a worker is working in another job and their usual main one with you. The other job may be paid or unpaid and will not normally be with you but with a separate employer. A secondary employment policy will cover the rules about your employees or workers working elsewhere at any point during their employment with you. As an employer, you can restrict your workers from engaging in secondary employment when they work for you. For example, you can:

• ban them from taking on secondary employment; or
• allow them to take on secondary employment provided they have obtained permission from you, which you should detail in their employment contract.

It is common to bar senior workers from working in secondary employment, but to permit junior workers, providing they seek your permission first. However, you can refuse the request to engage in secondary employment and where your worker does not ask for permission, you could detail this as a disciplinary issue. 

Can I Refuse a Request for Secondary Employment?

If you do not have a policy on secondary employment or do not state this in your worker’s contracts, you may still have a right to refuse your employee or worker’s request. This is where secondary employment could be detrimental to your business. 

Why Might an Employer Restrict Their Workers From Working Elsewhere When Taking Holiday Leave?

Holiday leave or annual leave is in place to allow your workers to rest and take a break. If they are working during it, they may not be able to re-energise themselves and may not return motivated. This could affect their productivity in the workplace. They may also return to work and experience stress as their health suffers from overworking, and they may not have spent time with their family.

You may decide to ban your workers from working in secondary employment whilst on holiday leave. You can also bar them from working in secondary employment at any time during their employment with you. However, you should be reasonable about your decision and think about how the secondary employment may or may not affect your business. If you act unreasonably, an employee could claim constructive unfair dismissal.

Key Takeaways

It is a legal requirement to allow your workers a minimum amount of paid holiday leave each year, otherwise termed as annual leave. Holiday leave allows your workers to take time away from the workplace and relax. However, no law stops them from working elsewhere when taking holiday leave from your employment. This is termed working in secondary employment. As an employer, you can put rules in place about this, such as banning it completely or requesting that your workers seek your permission. You can detail this in their employment contract, or you may be able to enforce this through the implied duty of trust and confidence between you and your workers. 

If you need help understanding the rules about your workers working elsewhere when taking holiday leave in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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