In Ogumodede v Churchill Contract Services, the claimant was employed by a contract cleaning company. She had worked full-time day shifts cleaning at Deutsche Bank since 2004. She had, though, taken up a second full-time role working night shifts cleaning at the Houses of Parliament in 2008. When she started in these roles, she worked for two separate cleaning companies. However, the contract for the Deutsche Bank cleaning transferred to Churchill Contract Services ("CCS") in 2018, and the claimant's employment transferred to them under TUPE. In May 2024, the contract for the Houses of Parliament cleaning also transferred to CCS, along with the claimant's night shift employment.
The evidence before the tribunal was that the claimant had knowingly concealed her night shift job from CCS when she transferred to them in 2018. When the night shift job also transferred, she again attempted to conceal her dual employment from CCS. Despite this, CCS became aware of the long hours she was working – 17 hours a day with a 5-hour break between the roles in the evening and a 2-hour break in the morning. This breached the Working Time Regulations, which limit night work to an average of 8 hours in each 24-hour period.
CCS investigated the matter and the employee was dismissed from the night shift role but remained employed during the day at Deutsche Bank. She made a number of complaints to the employment tribunal. However, because the carrying out of the contract of employment would involve the employer breaching statutory obligations, the employment judge held that she was unable to rely on the night shift contract as it was illegal. In reaching this conclusion, the judge took into account the claimant's intentional concealment of the fact that she was working two full-time jobs and the significant health and safety and public interest considerations.
Claims for breach of contract, unlawful deduction from wages and notice pay were all dismissed along with an unfair dismissal claim. The judge additionally concluded that the dismissal would have been fair in any case. The employer had retained the claimant in the better-paid role, offered her alternative work that would not have breached the WTR, and took into account health and safety and public policy concerns.
Employer put at risk by employee actions
By concealing her second role from CCS, the claimant in this case put the company at risk. There are potentially very serious consequences for employers attached to employees breaching the Working Time Regulations, including criminal sanctions such as unlimited fines and imprisonment. It seems likely that had both contracts not TUPE transferred into CCS, the claimant may well have continued to work both jobs indefinitely. However, the consequences for an employer are the same irrespective of whether the breach arises due to employment within their own company or via an employee having a second job elsewhere.
Clearly, where an employee chooses to hide their second employment from their employer, it becomes impossible for the employer to monitor the correct number of hours. However, there are some steps that employers can take to try to minimise the risk. This may include:
- Requesting new starts confirm whether they are currently working elsewhere
- Following up with employees on a regular basis to ensure nothing has changed
- Having a clear policy on second jobs that employees are aware of
- Training managers and employees on issues such as health and safety concerns, potential conflict of interest and why disclosure is important
- Including a contractual term restricting engagement in work that conflicts with the employer's business, and/or otherwise requiring disclosure of secondary employment
- Including failing to disclose secondary employment as a potential disciplinary offence
