At Darlingtons, we provide a cost effective, practical service for employers for preparing employment contracts, usually in conjunction with employment policies and procedures or a staff handbook. We also advise on varying or updating contracts of employment, which is increasingly important in today’s ever changing business landscape.
In addition to basic and essential contracts for any business such as trading terms and conditions, as your business grows and takes on staff, it is essential that you have the right employment contracts in place.
Regardless of whether you are a fantastic employer to work for, it is inevitable that at some point, and perhaps with regularity, you will need to rely on your contracts of employment, policies and procedures to either ensure your staff know your rules and adhere to them or perhaps to deal with disciplinary or absence issues or staff complaints or grievances.
We don’t just advise employers. We also commonly represent employees who have been offered an employment contract and want or need to have it reviewed by an employment solicitor. We are experienced at negotiating and understand the potential traps and pitfalls. Common issues can include :-
As an employee, whether in a senior capacity or otherwise, our employment lawyers based in London offer a cost effective, practical legal review, negotiation, check and overview of your employment contract. Please do get in contact.
The most important basics of employment contract law to keep in mind are :-
It is also almost certain that your business will have different types of employees. there will be different job roles and seniority. You may have part-time staff, staff on so-called zero hours contracts, temporary staff, staff who work outside of the office, perhaps at home or very senior employees. A single contract template is unlikely to meet your business needs.
At Darlingtons, one of the clear benefits we offer is that we don’t just prepare contracts for clients, we ensure that clients understand why a contract is drafted the way it is, the underlying risks and we offer support going forwards.
Employment policies are often a good way for employers to obtain flexibility, outside of the contract relationship. Policies such as holidays, health & safety, data protection or social media and internet use may need to be updated regularly and may be stated specifically not to be part of the contract. Employers should also be aware that, by conduct or for other reasons, aspects of policies may become contractual. Advice should be sought in this tricky area.
We work with employers in drafting employee benefits and deal with matters such as share and option awards, performance measures, bonus and commission payments and the position if the employee leaves. Employers need to recognise that custom and practice can apply to discretionary bonuses.
Also important is to consider what happens if the employee commits an act of gross misconduct – is he or she still entitled to a bonus or commission? What if a sale is part completed when an employee leaves or a sales contract is ongoing? How will commission be calculated in that circumstance? We draft good leaver and bad leaver clauses in employment contracts.
With employment contracts, there are always certain terms implied by law and what is included in the contract may well be varied by conduct of the parties – a job role may change and evolve. Clauses in the contract may not be enforceable such as restrictive covenants, if they are drafted too widely or favourably to the employer, without clear thought.
You certainly won’t want your staff to breach data protection or discuss your business, it’s clients or suppliers in a damaging or even defamatory way. You certainly won’t want your staff to poach your best customers or staff. It’s vital to protect those interests but also to do so in a proportionate way. Contract clauses which are excessive may well be varied or even found totally unenforceable if they are not carefully drafted by experienced lawyers.
The way in which many of us now work, and the ability, due to technology, to work just as effectively in many ways remotely, has led to a rapid increase in working from home. Staff also have a number of statutory rights to request flexible work, and so employers must tread very carefully in this area. A clear policy and a consistent approach are required to avoid problems, which can easily include potential claims for discrimination. A well thought out and communicated set of clauses in employment contracts and/or separate policies on the issue are essential. Employees working remotely also necessitates consideration of security risks for equipment and data and potential health and safety considerations.
One of the most common issues for employers relates to legal rights and business considerations relating to whether it’s lawful varying employees terms and conditions.
Many employers legitimately have reasons for wanting to change employees terms, but the area is fraught with potential difficulty and risk.
An employment contract is no different to any other form of contract. Once agreed, the general rule is that neither party can alter the terms without the other’s consent. Consequently, an attempt to unilaterally alter a contract would be a breach of contract. Depending upon what type of breach of contract will depend on the options available to the other party.
If you are an employee and your employer changes your contractual terms, you may well face a difficult decision. Do you reluctantly accept the change or not ? If not, should you resign and claim that you have been unfairly constructively dismissed (assuming you have the necessary length of service to qualify)?
Employers are well advised also to be wary of the employment contract being altered by conduct. Take the example of an employee who is allowed to work from home every so often. Gradually, this becomes more and more common. In that situation, over a period of time the employee may be in a position to argue that he or she now has the contractual right to partly work at home. The same sort of issue can apply to an informal change of job role.
In the same way, if as employee, your employer alters your employment terms and you accept those changes, especially without reserving your position or making it clear it is under protest, over a period of time, you may be considered to have accepted the change and to have potentially waived the employer’s technical breach of contract. If your employer alters your contract, you should consider your options and not simply do nothing.
If an employer is in financial difficulty, one option is to seek to alter employee’s contract by paying them less money, perhaps as an alternative to redundancy. In such a genuine predicament, a Tribunal or court may well be sympathetic to the employer who tries to retain staff, the situation must still be handled very carefully and cannot be imposed on employees. Consultation is key and if redundancy may be the alternative if the employee or sufficient employees are not prepared to work on less favourable terms, employees should be put on notice and proper process followed.
Employers will often include clauses in contracts seeking to reserve the specific right to alter certain aspects of employment without further consent. Examples of these types of clauses include mobility clauses and hours of work. Employers should be aware that such clauses may not be effective and will be given a restrictive interpretation by courts and tribunals and the implied terms of an employment contract may curtail the operation of an express flexibility clause.
Get in touch if you need a solicitor for an employment contract, solicitor advice on legal issues relating to changing a contract of employment or an attempt to do so, whether you are employer or employee.