Multiple jobs breached Working Time rules 

How can an employer deal with an employee who holds multiple jobs, in breach of working time limits on working hours? This was the subject of a recent employment tribunal decision. 

Ogumodede v Churchill Contract Services 2225883/2024 

Facts of the case 

Ms Ogumodede became employed by Churchill Contract Services (Churchill) under two separate contracts following TUPE transfers: one for daytime cleaning work at Deutsche Bank (8am–5pm) and another for night-time cleaning at the Houses of Parliament (HoP) (10pm–6am). These roles amounted to 17 hours of work per day (77.5 hours per week), with minimal rest between shifts, in breach of the Working Time Regulations 1998 (WTR), particularly the requirement for 11 consecutive hours of rest in each 24-hour period and strict limits on night work. 

Churchill became aware of this dual employment only after acquiring the HoP contract in May 2024. Concerned about her welfare and non-compliance with the WTR, Churchill suspended Ms Ogumodede from her HoP role without pay from 25 July 2024. They eventually terminated that contract on 28 October 2024, but she continued in her Deutsche Bank role. 

Ms Ogumodede brought various claims in the employment tribunal. She argued that her dismissal was unfair, that she was entitled to redundancy pay (as some colleagues were made redundant while she was suspended), and that the suspension without pay constituted unlawful deductions from wages. She also claimed wrongful dismissal and sought her notice pay. 

Employment tribunal decision 

The tribunal dismissed all of Ms Ogumodede’s claims. It held that the employee was prevented by the principles of common law and statutory illegality from enforcing the employment contract. Specifically, performance of the contract breached regulation 6(1) WTR, which limits night workers to working an average of eight hours in 24 hours. This is a strict limit and cannot be opted out of, unlike the weekly maximum of 48 working hours.  

Ms Ogumodede was found to have deliberately concealed the fact that her working hours were in breach of the WTR, meaning that she had knowingly participated in illegal performance of the contract. Additionally, there were strong health, safety and public interest considerations behind the WTR working limits. The tribunal’s finding of illegality meant that the contract could not be enforced and Ms Ogumodede could not pursue any of her claims against Churchill.  

The tribunal further held that Ms Ogumodede’s dismissal was for a potentially fair reason: contravening a statutory restriction. The employer had also followed a fair procedure by consulting with her and offering her reduced hours. Churchill’s decision therefore fell within the range of reasonable responses open to a reasonable employer, meaning that her unfair dismissal claim would have failed, had she been entitled to pursue that claim. 

The Birketts view 

In this case, it soon came to light that the claimant was engaged under two contracts for the same employer, meaning the employer could take appropriate action to address the situation and ensure compliance with working time rules.    

The position is not so clear cut if an individual is working for two or more separate employers, and they are each unaware of the other. Statutory guidance suggests that employers must ensure compliance with limits on working time, even across multiple employers. Employment contracts will often include a provision seeking to restrict the ability of an employee to work elsewhere without the express permission of the employer, and the individual is under a contractual obligation to disclose any other employment.  

Relying on illegality to terminate a contract that breaches working time limits is not without risk, particularly if the employee is only working day shifts and has opted out of the 48-hour weekly maximum. With this in mind, employers should always ensure that they follow a fair procedure and consider alternatives before dismissing, to be in a stronger position to defend a subsequent claim for unfair dismissal.