Employees, on occasion, may wish to take on additional employment or voluntary work. This policy is intended to allow for this while fulfilling our obligations in relation to the Working Time Directive, relevant legislation and the Council's Code of Conduct.
Employees must not undertake any form of employment additional to their Falkirk Council employment which is potentially in conflict or may impact adversely on the performance of their duties.
This policy is intended to prevent, as far as is practicable, conflicts of interest arising in relation to the employment of all permanent and temporary employees. It is not intended to apply to casual workers within the Council.
Definition
Extramural employment relates to any paid or unpaid employment undertaken by an employee which is in addition to their substantive Council post. This includes self-employment and employment elsewhere within or outwith the Council.
This policy also relates to extramural activities not regarded as employment but only where these activities may conflict with the proper performance of an employee's duties. This is not intended to refer to adhoc charitable or voluntary work. It may apply, however, where an individual is an officeholder with a charitable/voluntary organisation, Parent Council, or other similar body and their extramural role has the potential to conflict with their Council employment.
For example, a conflict may occur where an employee is involved in issuing grants on behalf of Falkirk Council and also holds a position such as Treasurer or Secretary of a voluntary group applying for financial assistance from the Council. The policy is not intended to prevent employees from undertaking such extramural activities. It identifies the need for activities to be discussed with the relevant line manager to avoid any conflict of interest arising.
Employees will only be permitted to engage in other employment or business activity provided that it:
- does not interfere with, or adversely affect the Council's interests
- does not interfere with the employees' ability to meet their contractual requirements; and
- does not breach any statutory obligation (eg Working Time Regulations).
Any additional employment or business activity requires the advance approval of the employee's line manager.
Procedure
Declaring extramural employment
Any employee, who is considering undertaking additional employment, starting up a business or becoming an officeholder of a charity or other similar body, must complete an extramural employment form via MyView in advance.
Any employee currently undertaking such extramural employment or activities, which have not been notified to their line manager, must also complete this form.
Identifying potential conflict of interest
Once in receipt of the extramural employment form via MyView, the line manager should consider the potential for a conflict of interest to arise between the employee's extramural employment/ activities and their post. This should be considered in consultation with the employee.
When recruiting individuals already employed by the Council, it should be established at interview stage whether the employee intends to retain their current post if successful. If an employee intends to retain their current post then a discussion must take place with the successful candidate, post interview, as to whether/ how this may impact on their Council post. An extramural form should be completed via MyView as part of the onboarding process or on the employee's start date to reflect this discussion and record any limitations required.
Where a potential conflict of interest is identified, the line manager should discuss/ seek approval from their Chief Officer before authorising this form. Areas to be considered, when determining whether a conflict of interest is likely to arise, include:
Hours of work
Are the hours involved in the employment/business, in terms of their frequency and timing, liable to affect an employee's capacity at work?
Falkirk Council has a responsibility under the Working Time Directive (WTD) to ensure that employees receive appropriate rest breaks, daily rest periods, and weekly rest periods. The Council also has a responsibility to ensure that employees do not exceed the maximum weekly working hours of 48 hours in any 7 day period averaged over 52 weeks.
Consideration should therefore be given to the employee's working hours arrangements in their other employment and the potential impact of those commitments on their Council duties. For example, would the employee's extramural employment impinge upon any requirement for them to work shifts or flexible hours on behalf of the Council should this be required? The extramural employment needs to be assessed against the WTD to ensure adequate rest periods are available and the additional time does not contravene any of the regulations. See Working Time Directive for requirements.
External contractors
If an employee involved in the award of contracts has or is likely to have a business relationship outwith their Council duties with existing or potential external contractors, this may be perceived as a conflict of interest. Restrictions should be considered in line with the Council's Code of Conduct.
Advice in this regard may be sought from the Council's Monitoring Officer, who is based within the Governance Section.
Dealings with the Council
Consideration should also be given to whether the employee is likely to have dealings with the Council in the course of their extramural employment. For example, could the employee or his/her other employer gain financially or otherwise through decisions or actions taken by the employee in the course of their Council employment or as a result of their knowledge of confidential Council matters?
General impact
Consideration requires to be given more generally to whether the extra mural employment or activities concerned is likely to detrimentally impact on public confidence in the Council or has the potential to bring the Council into disrepute.
Where no conflict of interest is identified
Where no conflict of interest is identified, the employee's line manager should confirm his/her knowledge of the employee's extramural employment/activities by confirming their approval in MyView.
It is the responsibility of the employee to advise their line manager of any change in circumstances relating to their extramural employment. The line manager should however, review this on a regular basis, at least annually.
Where the potential conflict of interest is identified
Where the potential for a conflict of interest to arise is identified, the line manager should discuss this with the employee, taking into consideration the details provided to consider methods of preventing such a conflict arising.
For example:
- Limiting the hours worked in the extra mural employment
- Taking advice if there is to be a business relationship with the Council in the extra mural employment
- Ensuring that the employee or his/her other employer does not gain financially or otherwise through decisions or actions taken by the employee in the course of their Council employ or as a result of his/her knowledge of confidential Council matters.
This list is not exhaustive.
Following discussion with the relevant Chief Officer, they should complete the extramural employment form either:
- Approving the extramural activities/employment on the basis of information provided
- Approving the extramural activities/employment with some specified limitations in order to prevent a conflict of interests arising; or
- Where a clear conflict of interest exists, refusing consent for the employee to undertake the extramural employment/activities detailed whilst maintaining their Council employment. In such circumstances, the employee concerned should be made aware that undertaking such extramural employment/activities could lead to disciplinary action being taken against them under the Council's Disciplinary Policy & Code of Practice. Further advice in this regard will be available from Human Resources.
If an employee disagrees with the decision to refuse consent for extra mural employment or activities then they may submit a grievance in accordance with the Grievance Policy.
Reviewing extramural employment
A report will be provided annually to Services with a record of employees undertaking extra mural employment/activities detailing:
- Employee name
- Job title
- Service
- Start date/Review Date
- Whether any restrictions/ limitation agreed
This report will be copied to the Council's Monitoring Officer for information.
The appropriate line manager should arrange for the employees listed to complete a new extramural employment declaration via MyView to consider whether the circumstances surrounding their extramural employment have altered and to ensure, where applicable, that any condition(s) placed upon such activities are being adhered to. It will not be necessary to obtain any further Chief Officer approval where the circumstances have not changed.
If, at this stage, or at any point during the employee's employment, it becomes apparent that an employee's extramural employment is having an adverse effect upon the performance of their Council duties or have resulted in a conflict of interest arising, this matter should be investigated. The Service will in such circumstances have the right to withdraw approval for the extra mural employment with immediate effect.
Equally, if any limitations or conditions were in place and are not being adhered to, or other such issues have arisen, disciplinary action may be taken against the employee concerned in accordance with the Council's Disciplinary Policy & Code of Practice.
Casual employment
Whilst it is not intended that this formal procedure be applied to individuals employed on a casual basis by Falkirk Council, managers should be aware of other employment undertaken by casual employees and should refrain from employing individuals on a casual basis in areas, or undertaking duties, where a potential conflict of interest may arise.
Review
The Chief Governance Officer, in conjunction with Service Directors and Trade Unions, will monitor and review this policy and procedure as required.
This Policy has been Equality Impact Assessed and no adverse impact has been identified.
Working Time Directive
Rest break – where the working day exceeds 6 hours an employee is entitled to a 20 minute break. For young workers (under the age of 18) where the working day exceeds 4.5 hours an employee is entitled to a 30 minute break. Lunch breaks qualify as a rest break.
Daily rest period – entitlement to a minimum rest period of 11 consecutive hours in every 24 hours. For young workers there is a minimum rest period of 12 consecutive hours in every 24 hours. Some employees eg shift workers are excluded from this provision. This can be calculated over 14 days.
Weekly working hours – maximum weekly working hours of 48 hours in any 7 day period (Averaged over 52 weeks by Falkirk Council collective agreement). If employees wish to opt out of this, then an agreement must be signed and this is subject to review.
Weekly rest period – entitlement to a minimum rest period of 24 consecutive hours per week (or 48 hours per fortnight). For young workers the minimum rest period is 48 consecutive hours in every 7 day period, which cannot be averaged.
For workers with more than one job:
The limits on the working week apply only between a worker and an employer, and there is no duty on the employer to take into account the existence of a second job in the exercise of the duty to ensure that the worker's average working time does not exceed the permitted limit.
However employers are obliged under the Working Time Regulations 1998 (Reg 4) to take all reasonable steps to ensure that the 48 hour limit on weekly working hours is complied with. This means that where an employee has 2 jobs both employers will be obliged to ensure that the employees total working hours in the 2 jobs combined do not exceed the limit unless the individual has chosen voluntarily to sign an opt out.
If a manager knows or suspects that one of their employees has another job, they should make reasonable enquiries of the employee to ascertain how many hours a week in total he or she is working. If, following such enquiries, it transpires that the employee is working more than an average of 48 hours a week in total, the manager should, in order to comply with the Working Time Regulations 1998, ask the employee whether he or she wishes to sign an opt-out agreement. The manager should point out that, if the employee declines to do so, action will have to be taken to ensure that he or she does not work in excess of 48 hours a week on average.
More importantly, if in the manager's view the number of hours being worked might threaten the health or safety of the employee (or of others), the manager must take all reasonable steps to remove the health or safety risk. This might mean instructing the employee to give up the other job, or reduce the number of hours being worked there (if that is reasonable). The priority should be to protect the health and safety of all workers by ensuring that no individual works such long hours as to be a danger to him- or herself or to others.
Rest periods are treated under the Working Time Regulations as entitlements which the employer must not refuse the worker and as such it is possible for employees to choose to take a second job during his or her 11 hour daily rest period or on his or her weekly rest day. However, Falkirk Council recognises that it is good practice to ensure that the impact of any extramural employment on an individual's substantive post is assessed and taken into consideration. Under the general duty on Falkirk Council to ensure the safety and health of employees, the rest periods should be maintained/adhered to.
In the case of young workers, under the age of 18, specific provision is made that the maximum working day and week is for all employments combined and that entitlement to a rest break is to be calculated by reference to hours worked for all employers if there is more than one.
Managers should be aware that if an employee takes on public duties such as becoming a magistrate, legislation may allow such duties to be undertaken. The Employment Rights Act 1996, section 50 permits time off for matters such as serving as a Justice of the Peace, or a member of a local authority, tribunal or school governing body. There are also rights to time off for trade union duties. Managers should take advice before a request is refused.