Contracts of Employment
An employment contract sets out the terms on which an individual is contracted with a business as their employee.
Employment contracts can vary from a one-page statement of key terms to a more complex contract prescribing the employee’s obligations both during and after employment.
No matter at what level an employee enters a business, all employees are entitled as a matter of law to have at least their key terms set out in a contract, and to receive this information within two months of commencing employment.
It is important that the employment contract is right for both your business and its employees.
The starting point is to make sure your interests are protected. Amongst other things, this means ensuring that your employees keep sensitive commercial information confidential, and that ownership of any intellectual property remains with the business at all times. You can also protect yourself after the relationship has ended by putting in place post-termination restrictions. Typically these prevent employees from setting up in competition and poaching your customers and workforce.
At the same time, the contract must set out the employee's rights when it comes to pay, bonuses, holiday and other benefits.
We draft employment contracts for all levels of staff, from office juniors to company directors. Our contracts focus on the real needs of the business and ensure that employees are clear as to the rights and obligations afforded to them, whilst the business is protected both during and post-employment.
We can offer fixed or capped fees for the preparation or review of employment contracts.
Some examples of our work are:
- Drafting a contract for a start-up business so that it could take on its first ever employee.
- Reviewing the UK contracts of a large multi-national retailer to ensure compliance with current legislation.
- Drafting post-termination restrictions for a large IT company.
Handling Employee Complaints and Disciplinary Issues
It is very rare for the employment relationship to run smoothly all the time. We are experienced in helping businesses deal with any problems along the way.
Where an employee wants to bring issues to your attention they can raise a complaint or grievance. It is important to deal with matters promptly and fairly so that the issues do no escalate. This usually means investigating the issues, meeting with the employee and allowing them to appeal to another manager if they are not happy with your decision.
If you are concerned about your employee’s conduct or performance then the same principles apply: in most cases you must address them promptly and fairly. An investigation is important, together with a meeting and the employee’s right to appeal against the company’s decision.
Some examples of our work are:
- Advising on the disciplinary process required in relation to an employee who was suspected of downloading inappropriate images onto his computer whilst at work.
- Advising a business which had received allegations of bullying, on how to proceed and reach a satisfactory conclusion with all concerned.
- Advising a large employer on the potentially complex issues of dealing with multiple grievance and disciplinary issues arising from the same incident.
Staff handbooks (also known as employee handbooks) set out the policies and procedures in place within an organisation, and act as supporting documentation to an employment contract. The policies can sometimes form part of the employment contract but they are usually separate and non-contractual.
Employers should ensure that everyone is provided with access to the staff handbook upon commencement of their employment. Handbooks can be used as an aid to induction and training of new employees, but also assist in meeting an employer’s legal obligations.
Staff handbooks may include policies on any number of topics, including:
- Equal opportunities, including anti-harassment, bullying and general equal opportunities best practice;
- Day to day conduct within the organisation, including dress code, data protection, sickness absence and expenses;
- The working environment, including health & safety, smoking and whistleblowing;
- Performance management, including policies for disciplinary procedures and grievances;
- Leave entitlements, including maternity, paternity and adoption, compassionate and bereavement leave, and flexible or home working.
Staff handbooks are great for promoting your company's values within a workplace, and assisting in creating a culture where issues are dealt with consistently by following clear and accessible procedures. Where problems arise, the handbook acts as a guide for both parties so that a dispute can be avoided.
We regularly draft staff handbooks for organisations of all sizes, focusing on the key policies and procedures that an organisation requires in order to assist in efficient HR management.
We also assist with reviewing and updating existing handbooks, advising on updates in the law and additional policies that ought to be included.
We can offer fixed or capped fees for the preparation or review of handbooks.
Some examples of our work are:
- Preparing a detailed 200-page handbook for a software company.
- Drafting simple disciplinary and grievance policies.
- Advising on a company's obligations under the Bribery Act 2010 whilst providing training and policies for use by its workforce.
Whistleblowing and Protected Disclosures
Whistleblowing is the disclosure by a worker of wrongdoing within an organisation. Following a series of high profile corporate scandals, a new statute called the Public Interest Disclosure Act 1998 (“PIDA”) was introduced to provide protection to workers who make disclosures in respect of certain types of wrongdoing as set out in PIDA.
Workers who make disclosures about their employers (or third parties involved with their employers) which fall within PIDA are protected from dismissal or victimisation, as a result of their disclosure. Organisations should ensure that adequate procedures are in place so that it is clear how workers should go about making a disclosure. The legislation protects not only employees, but also consultants, agency workers and contract workers, amongst others. Organisations should therefore provide all workers with a copy of their whistleblowing policy and provide training where required to ensure that staff understand their rights.
A whistleblowing policy should include the following information:
- the types of disclosures that fall within the legislation;
- the requirements under which a disclosure will be protected by the legislation;
- how a worker should report any such disclosure and to whom; and
- what will happen once a disclosure has been made.
Policies should also state clearly that workers have a right to make a disclosure without any recourse by the employer and without fear of being dismissed or victimised by the organisation as a result.
If an organisation does not have a clear policy for dealing with protected disclosures, there is a risk that workers will not deal with any disclosure appropriately and the worker may be treated differently as a result, giving rise to a potential claim by the worker against the organisation. In such circumstances, successful unfair dismissal and/or victimisation claims in the Employment Tribunals can give rise to unlimited compensatory awards.
How we can help…
We regularly advise organisations of all sizes on their obligations under PIDA. Where a disclosure has been made, we advise on whether this will fall within PIDA and the best way to handle it in accordance with the legislation or the company’s internal policies.
We have extensive experience in the drafting and implementation of whistleblowing policies for organisations of all sizes and in all commercial sectors.
If a whistleblowing claim under PIDA is brought against your organisation, we can advise you on how best to defend that claim and limit the potential damage done to your business.
Bribery Act 2010
The Bribery Act 2010 (the “Act”) came into force in July 2011 and aims to ensure that the difficult issue of bribery and corruption is tackled more effectively than has previously been the case in the UK.
There are four main offences under the Act:-
- bribing another person;
- accepting a bribe;
- bribery of a foreign public official; and
- failure of a commercial organisation to prevent bribery.
The penalties for breach of the Act can be severe, including hefty fines and imprisonment. However, organisations can reduce their risk of liability by putting in place adequate policies and procedures to deal with bribery and corruption issues.
One of the main effects of the Act is that companies who breach the “failing to prevent bribery” provision will face unlimited criminal fines. The only defence will be for companies to show that they had “adequate procedures” in place to minimise bribery which will include proving they had effective training in place for employees on anti-corruption and the provisions of the Act. Therefore, organisations should ensure that they have an anti-bribery and corruption policy in place that clearly sets out employees’ obligations. Companies should also ensure that employees receive adequate training and understand the implications of failure to comply with the Act.
Further, the new offences will apply on an extra-territorial basis. This means that if an individual or business is British, the Act will apply regardless of where the bribery actually takes place and whether or not it is connected with the UK. This makes the effective introduction and enforcement of an anti-bribery and corruption policy all the more important.
How we can help…
We regularly advise all sizes of organisation on their obligations under the Act as well as giving advice on the conduct of risk assessments and the effective training of employees in the prevention of corruption and bribery.
We also regularly draft anti-bribery and corruption policies for all types of organisations and assist with reviews of existing policies and procedures to ensure compliance with the Act.
Social Media and Internet Use
The use and misuse of social media such as Facebook, Twitter and YouTube are fast becoming key issues for employers and employees alike.
Recently we have seen these problems arise:
- An employee being dismissed for posting derogatory comments about her employer's customers on Facebook
- A worker facing dismissal for criticising his employer's products on Facebook
- Bullying and harassment over the internet using social media
- Online posts and comments being collated and used as evidence of gross misconduct
- Senior employees leaving a business with databases and contact lists of key customers, created using the LinkedIn website
For employers it is important to put in place well-drafted policies that deal with the use of social media and the internet in general. An employer will be much more likely to successfully defend a claim of unfair dismissal if they have first made it clear to their workforce what is and isn't acceptable in the work environment. A typical policy would cover:
- Which type of online comments or posts are treated by the employer as misconduct
- In which circumstances employees' emails and internet access might be monitored
- The use of social media in the recruitment process
- The allowed level of access to the internet via smartphones
- Which websites are restricted whilst at work.
A specialist lawyer from our team of employment solicitors will be able to give you further guidance on any of the issues set out above, from introducing suitable policies, to dealing with grievance and disciplinary procedures or representation and advice in the Employment Tribunal.
Managing Under-performance and Sickness Absences
Employee performance and absence are two of the most common concerns for employers and we deal with them every day.
A company’s success relies on having the right people in its team. Where individual performance falls below the required standard, we can help you handle it in the most effective way. The law encourages businesses to work with employees to address performance issues and offering training or support where it is needed. In some cases, it will be appropriate to bring the employment relationship to an end.
Some examples of our work are:
- Advising a manufacturer on the performance management process, from initially identifying the issues, through to the imposition of warnings and the preparation of action plans.
- Providing training to a national team of HR managers on how to effectively manage performance.
- Advising a US company on the issues arising from the under-performance of an individual at its UK subsidiary.
An absence from work can cause a serious problem for both the employee and employer, so it is important to take the right approach.
A few days off can usually be dealt with by the employee filling out a sickness self-certification form, but if the period of absence is prolonged, then the employer needs to follow certain procedures. An employer is usually expected to investigate the cause of the absence and how long it is expected to last. This means discussing the situation with the employee and considering any medical reports. If the employee is disabled, then you may be under a duty to make reasonable adjustments to the workplace.
Some examples of our work are:
- Advising in relation to an employee who had been absent from work for a long time due to a severe illness.
- Advising in relation to an employee who had regular short periods of sickness absence.
- Drafting company sick pay and absence-reporting procedures.
It is important to manage the recruitment process properly in order to avoid disputes or even litigation in the Employment Tribunal.
Recruitment starts with identifying the need for additional personnel, preparing the job description and advertising, before interviewing applicants and shortlisting those who have been successful. The most common problem experienced by employers is that they contravene the provisions of the Equality Act 2010, by applying discriminatory criteria to the exercise. Even if discrimination has not taken place, it makes sense to utilise a fair and transparent process to reduce the risks of disputes. Key points to remember include:
- Staff training can be key. It is important that recruiting managers are aware that job advertisements cannot require applicants to be of a particular age, sex, race, religious belief, disability, marital status or sexual orientation (with certain exceptions). A requirement for a "Reception Girl", or interview questions such as "Are you going to retire soon?", or "Do you expect to have any more children?" are very ill-advised.
- It is useful to keep a paper trail of the decision-making process so that businesses can produce evidence that the decision was made using fair and lawful criteria.
- Employers often use the same pre-determined questions for each interviewee.
- Can any potential discrimination be justified? Some jobs require employees of a particular ethnicity or gender and the law allows this to happen.
- Are any reasonable adjustments required for interviewees who might be disabled?
- Personal information which discloses the applicant’s age, gender, race or sexual orientation might cause issues. Employers often view applicants' profiles on Facebook or LinkedIn and any decisions should not be based on one of the protected characteristics, which might be disclosed by such websites.
- When making an offer of employment a clear offer letter should be drafted which sets out the basis of the offer and, in particular, any conditions such as favourable references, confirmation of qualifications and confirmation of the employee's right to work in the UK.
- Any induction process should include the proper health and safety training; it should set out any probationary provisions and include both job specific and equal opportunities training.
It can be crucial to prepare well-drafted job descriptions and non-discriminatory recruitment policies, as well as ensuring that the recruitment process is managed by well-trained staff. If you would like more information about the potential pitfalls to look out for when recruiting, then please contact our team.
Maternity and other Family Rights
Employers should be aware of their responsibilities towards pregnant employees and those who intend to start a family. If such situations are handled incorrectly, they could give rise to claims of unfair dismissal and discrimination.
Some examples of our work are:
- Advising a company on the rights of a mother returning from maternity leave.
- Providing advice on a redundancy situation where one of the individuals at risk of redundancy is also pregnant.
- Advising on the process required to deal with requests for flexible working.
Agency workers, or "temps", are workers who are engaged by an end user through an agency or employment business. They are often engaged for fixed periods, however they can often end up working in a business for a significant amount of time. The Agency Workers Regulations 2010 came into force on 1st October 2011, and they have given greater legal rights to "temps".
In summary, The Agency Workers Regulations 2010 provide that agency workers have the right to the same pay and other "basic working conditions" as equivalent permanent staff after a 12-week qualifying period. These conditions can include:
- Pay, including basic pay and overtime pay but excluding occupational sick pay
- Some types of bonuses
- Night work
- Rest breaks
- Annual leave
Agency workers must also be allowed access to collective facilities, and to information about employment vacancies from day one of their assignment. Collective facilities may include a canteen, a workplace crèche, certain transport services, car parking and common room facilities.
In order to enforce Agency Worker Regulations 2010, agency workers should start by making informal or formal requests for further information from their agency, or the hiring business if the agency does not respond. The "temp" will then have further recourse in the Employment Tribunal if required, but the regulations encourage the workers to follow certain procedures before a claim is issued.
If you would like further information on any aspect of the employment of agency workers and temps, please contact our team.
Virtual HR Adviser
For many businesses, particularly SMEs, there is no business justification for employing a professional HR team - often their services aren’t required on a full or even part-time basis. It is typically when, for example, staff join and leave, if an issue with a specific employee arises, or if there is a significant change to the business that HR input is needed.
However, businesses may also require HR support from time to time, to ensure that best practice is followed and frequent changes in employment law are complied with. HR professionals are an expensive resource and also need regular training - this is an additional cost to your business and, unless you have more than one person in the role, you may often have periods of time where you have no HR cover.
All of this means that, when an employment issue suddenly arises, managing directors, finance directors or other senior managers might spend valuable time dealing with extremely complex legal issues, where significant financial liability can arise if the matter is not handled by a professional. This is where your “Virtual HR Adviser” can help.
- On an ad hoc basis, we can quickly review the employment law issue at hand and advise you on how to deal with it on a practical and commercial basis.
- On a more general level, our employment lawyers can provide your business with an initial review of your employment practices, and can help you put in place the necessary documents, such as standard contracts of employment, staff policies and handbooks, which will assist in the smooth running of your business from an HR perspective.
Our overall aim in providing this cost-effective Virtual HR Adviser service is to free up directors and senior managers from the burden of complex HR and employment law issues, so that they can focus on driving their businesses forward.
Business Transfers and TUPE
What is "TUPE"?
TUPE is the commonly-used term for the Transfer of Undertakings (Protection of Employment) Regulations. It is very important for employers to understand when TUPE applies as it is relevant to an enormous number of business transactions, including mergers, acquisition and where services or in-sourced or out-sourced.
What are the risks involved with TUPE?
TUPE is a significant and complex piece of legislation which implements EU law. TUPE applies where a business changes hands or a service is performed by another entity. When it applies, employees can follow the work by automatically transfer from one employer to another and they are afforded enhanced protection against dismissal or changes to their contracts.
If an employer fails to appreciate the relevance of TUPE and is in breach of these statutory provisions, significant financial penalties can be incurred not to mention the difficult employee relations issues which can result.
How can we help?
It is important to seek advice from a restructuring lawyer at an early stage. We regularly advise all sizes of organisation on TUPE and its application to their particular business transaction. This usually includes advising on:
- Whether TUPE applies to your business transaction;
- How to fulfil the information and any consultation requirements under TUPE;
- The negotiation of favourable employment warranty and indemnity provisions in any relevant business transfer agreement; and
- Dealing with the employee relations issues involved in any TUPE transfer.
When it's time to end the employment relationship we can advise you how to do it in the most cost-effective way, with the least impact on your business.
Some examples of our work are:
- Advising a F&B company on the termination of an employee.
- Providing detailed advice on the removal of a senior manager at the UK branch of a global company.
- In conjunction with our corporate team, providing advice on various boardroom disputes.
Most employers require their workforce to agree to post-termination restrictions. They are usually found in the contract of employment and they prevent former employees from damaging your business by setting up in competition and stealing away your customers. It is important that they are tailored to your business, by going no further than is necessary to protect your company’s interests.
We regularly draft restrictions on behalf of clients. Some examples of our work are:
- Reviewing the post-termination restrictions of the UK subsidiary of a global software company.
- Drafting restrictive covenants for a technology start-up.
- Handling a dispute over the interpretation and consequences of post-termination provisions in the contract of a recruitment business.