Contract Checking
The Problem
Starting new jobs can be exciting if challenging and quite rightly most people approach them with enthusiasm and optimism.
No one wants to put a damper on that but there are some realities that it’s worth thinking about before starting a new job. If you can get the details before leaving one job and starting another so much the better. The most important information is:
1. What will you be required to do?
2. How will your performance be assessed?
3. What will you be paid by way of wages and benefits?
4. What rights will you have if things don’t work out as expected?
5. What post-employment obligations will you be entering into?
In an earlier newsletter I argued that employment law had become ‘lawyerised’, with very complex rules. This makes it very hard for most people to take in the impact of the contract they have entered into and, understandably, most people tend to skip the small-print.
That might make sense if you’re buying say a new iPhone, simply because Apple are unlikely to leave themselves open to the reputational risk of offering ‘dodgy’ contracts. But it certainly doesn’t make sense in the employment context where, frankly, there are risks around every corner.
Some occupational groups are more at risk than others, which I’ll deal with below, but a number of issues apply to everyone.
Statement of Employment Particulars
In simple terms, employment contracts are made up of some elements that are ‘express’ or written down and others that are not written down but are ‘implied’. One of the most important implied terms is the mutual duty of trust and confidence. I have referred to this obligation in earlier newsletters but in essence neither party can behave in a way that undermines the trust on which the employment relationship must be based.
To help protect you, where the job is going to last a month or more, the law requires your employer to give you a written statement of employment particulars within 2 months of starting work. This can comprise more than one document but must include (amongst other details):
1. Your employer’s name.
2. Your name.
3. Where you will be required to work.
4. Your job title or details of the work.
5. Your hours of work.
6. How much you will be paid.
7. When you will be paid.
8. What pension arrangements apply.
9. What holidays you will get.
10. Your start date.
11. What notice periods will apply.
12. How you should go about raising a grievance.
These are key things to check along with the arrangements for sickness and sick pay which may come separately. You should also make sure you receive copies of the organisation’s grievance and disciplinary procedures.
In Northern Ireland the rules are slightly different.
Contract Checking With Affinity
We will check your statement of employment particulars if you wish either before or after you start a job and advise on any areas you should be aware of.
This is a complex and time consuming process and could take up to a week in straightforward cases. Please bear this in mind, particularly with the special occupational groups I deal with below.
Contractors (particularly in IT)
In the last 20 years, employers have worked hard to shift people from secure forms of employment to less secure forms e.g. hiring them as contractors, through agencies or on zero-hour contracts.
In the case of contract working, this has usually been attractive to the contractor as well as the employer; partly because contract working has allowed efficient tax planning.
In most cases contractors are ‘clued up’ on what they are signing and understand the issues that could arise from their contracts; but doubts sometimes arise on the liabilities they are asked to take on.
We don’t provide a full legal advice service on commercial contracts but we will be happy to provide advice on specific issues for members.
Financial Advisers
It’s fair to say that this area has given rise to more complex cases than any other.
One reason is that the contracts members have signed have often been masterpieces of opacity; in many other cases they have been open to more than one interpretation on key points.
This inadvertent or deliberate poor drafting, has produced particular problems; not so much during the course of contracts, when advisers and firms they work for or through, usually resolve issues as they go; but on termination when pigeons tend to come home to roost.
In particular, advisers can find themselves paying back all sorts of costs or can discover they are constrained in what they can do by ‘restrictive covenants’ that they entered into as part of their contracts. Some restrictions may be reasonable e.g. a prohibition on taking a customer list with you when you leave but others we’ve seen are most definitely neither fair, proportionate nor enforceable legally. The most outrageous was a restriction that purportedly stopped an adviser working anywhere in the whole of Yorkshire for a very lengthy period!
But members need to be wary because restrictive covenants can and often do come back to bite those who sign them. We’ll deal with this admittedly rather dry subject in more detail in a future newsletter.
Summary
If you have moved jobs and are concerned about your contractual position or are thinking of changing jobs you might want us to review the terms and conditions or contract for the new post.
Please contact the Union’s Advice Team on 01234 716005 and we’ll be pleased to help; although as I said this may involve a considerable amount of work and may take some time. For that reason, the sooner you are able to contact us the better.