The Government has unveiled proposals to introduce fees for employment tribunals in the latest stage of a wider push to overhaul the regime for labour disputes. The details however are hazy with The Government suggesting that low income families will be exempt from the new fee. As the large proportion of workers who apply to a tribunal have been dismissed it is unclear how many claimants will actually have to pay.....
The Ministry of Justice on Wednesday (14 December) unveiled two funding models for consultation. In the first, a fee of £150-£250 would be levied to begin a claim, with an additional cost of £250-£1,250 if the case goes to a hearing and no limit to the maximum award.
Under the second proposal, a single fee of £200-£600 would be charged, limiting the maximum award to £30,000. Those seeking greater compensation would have the option of paying an additional £1,750 fee.
More than 200,000 employment tribunal claims were made in the 2010-11 period, a 44% increase against 2008-09 according to Government figures, costing the taxpayer £84m.
Justice minister Jonathan Djanogly said this expense is "not sustainable", adding: "Our proposed fees will encourage businesses and workers to settle problems earlier, through non-tribunal routes like conciliation or mediation and we want to give businesses - particularly small businesses - the confidence to create new jobs without fear of being dragged into unnecessary actions."
Fee waivers will be available for low-income workers "to protect access to justice".
Thursday, 15 December 2011
'Illegal worker' wins wages claim
Okuoimose v City Facilities Management
Appeal No. UKEAT/0192/11/DA
Where an employer attempted to escape his liability to pay wages on the basis that the contract of employment was illegal.
The claimant, who was a Nigerian woman married to a Spanish national, worked as a cleaner for the respondent. She acquired the right to take up employment in the UK as a family member of a European citizen who had the right of residence in a Member State. Her passport stamp said that her right of residence expired on 8 July 2010, at which date the respondent suspended her without pay because, they alleged, the contract of employment was now illegal.
The claimant initiated applied to renew the permit on her passport. The respondent dismissed the claimant on 20 August on the grounds of illegality.
Later the same day the claimant produced a letter, dated 16 August, from the Border Agency which said that until her application had been decided, she would be treated for immigration purposes as being free to work and live in the UK.
The respondent reinstated the claimant but the claimant went off on sick leave and made a claim that she had suffered unlawful deductions from her pay (contrary to s. 13(1) of the Employment Rights Act 1996) during the suspension period .
Employment Tribunal Judgment
The Employment Tribunal considered the fact that the claimant had not produced evidence which showed her entitlement to work in the UK and also the penalties that could have been imposed on the respondent if they had employed an illegal immigrant, and came to the conclusion that the contract of employment was illegal. The claimant appealed.
The EAT
The EAT accepted the argument of the claimant, who claimed that she had not in fact lost the entitlement to work in the UK simply by reason of her failure to obtain a new stamp in her passport. The claimant had a right to work by reason of her status as a family member of an EU national. This right did not depend upon letters written by the UK Border Agency for she always had the right, irrespective of the expiry of the entry in her passport.
The Employment Judge had erred in that it considered the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties, and these were irrelevant factors.
The Statutory Law
The legislation
5. The legislation arises under treaty obligations. The Claimant's husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose's family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:
"Article 23
Related Rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there."
"Article 25
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents."
6. The Immigration European Economic Area Regulations 2006, seeking to transpose that directive, provide as follows:
"13.— Initial right of residence
(1) […]
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
[…]"
"14.— Extended right of residence
(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
[…]"
"15.— Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
[…]"
7. Separate from those provisions, which deal essentially with the rights of qualified persons, is the Immigration, Asylum and Nationality Act 2006. It is directed at the consequences of immigration control for employers. Regulation 15 sets up a penalty for employing a person without the relevant entitlement to work:
"15 Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if—
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom—
(i) […]
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise),
Appeal No. UKEAT/0192/11/DA
Where an employer attempted to escape his liability to pay wages on the basis that the contract of employment was illegal.
The claimant, who was a Nigerian woman married to a Spanish national, worked as a cleaner for the respondent. She acquired the right to take up employment in the UK as a family member of a European citizen who had the right of residence in a Member State. Her passport stamp said that her right of residence expired on 8 July 2010, at which date the respondent suspended her without pay because, they alleged, the contract of employment was now illegal.
The claimant initiated applied to renew the permit on her passport. The respondent dismissed the claimant on 20 August on the grounds of illegality.
Later the same day the claimant produced a letter, dated 16 August, from the Border Agency which said that until her application had been decided, she would be treated for immigration purposes as being free to work and live in the UK.
The respondent reinstated the claimant but the claimant went off on sick leave and made a claim that she had suffered unlawful deductions from her pay (contrary to s. 13(1) of the Employment Rights Act 1996) during the suspension period .
Employment Tribunal Judgment
The Employment Tribunal considered the fact that the claimant had not produced evidence which showed her entitlement to work in the UK and also the penalties that could have been imposed on the respondent if they had employed an illegal immigrant, and came to the conclusion that the contract of employment was illegal. The claimant appealed.
The EAT
The EAT accepted the argument of the claimant, who claimed that she had not in fact lost the entitlement to work in the UK simply by reason of her failure to obtain a new stamp in her passport. The claimant had a right to work by reason of her status as a family member of an EU national. This right did not depend upon letters written by the UK Border Agency for she always had the right, irrespective of the expiry of the entry in her passport.
The Employment Judge had erred in that it considered the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties, and these were irrelevant factors.
The Statutory Law
The legislation
5. The legislation arises under treaty obligations. The Claimant's husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose's family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:
"Article 23
Related Rights
Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there."
"Article 25
General provisions concerning residence documents
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents."
6. The Immigration European Economic Area Regulations 2006, seeking to transpose that directive, provide as follows:
"13.— Initial right of residence
(1) […]
(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.
[…]"
"14.— Extended right of residence
(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.
[…]"
"15.— Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
[…]"
7. Separate from those provisions, which deal essentially with the rights of qualified persons, is the Immigration, Asylum and Nationality Act 2006. It is directed at the consequences of immigration control for employers. Regulation 15 sets up a penalty for employing a person without the relevant entitlement to work:
"15 Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if—
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom—
(i) […]
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise),
Tuesday, 6 December 2011
Important Appeal case looking at causation in Whistleblowing cases
Charles Price, Barrister examines a new appeal case, NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 which looks at the causation test in whistleblowing cases....
Neutral Citation Number: [2011] EWCA Civ 1190
IN THE COURT OF APPEAL (CIVIL DIVISION)
The employer challenged the EAT's analysis on issues of vicarious liability and the causation test in whistle blowing cases.
First ground, it was submitted that the EAT erred in law in holding that the employer could in principle be vicariously liable for acts of victimisation of its employees in circumstances where the employees had committed no legal wrong.
Answer: The Court of Appeal found that the EAT had erred; the House of Lords in Majrowski unambiguously held that an employer could be vicariously liable only for the legal wrongs of its employees. In Majrowski Lord Nicholls defined vicarious liability as follows (para 7):
"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."
It followed that, absent any legal wrong, there was no room for the doctrine of vicarious liability to operate. The EAT had followed the case of Cumbria which was wrongly decided.
Second Ground:
Causation - The EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures:
i) the reasoning of the Employment Tribunal demonstrated that even if the EAT was correct in concluding that the employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here.
ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the prescribed reason but, as in unfair dismissal cases, it was whether the prescribed reason was the sole or principal reason for the action taken. Section 48(2) provides that the onus is on the employer to show the ground on which any act, or failure to act, was done:
Mr Linden QC counsel for the employer submitted that the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation giving effect to EU law. In the latter context it is incumbent on a court to read the legislation compatibly with EU law and the "no sense whatsoever" test is adopted in EU Directives. But where there is no such requirement, the legislation should be given its domestic meaning even if that means that the same statutory language may be differently interpreted depending upon whether there is an EU context or not: see the observations of Lord Brown of Eaton-under-Heywood in R (Hurst) v London Northern District Coroner [2007] 2 AC 189 para 52, UKHL 13. Accordingly, the EAT was wrong to consider that it was obliged to follow the principles set out in Igen v Wong.
The Court of Appeal agreed with the first submission, saying that the reasoning of the ET demonstrated that they did not think there was any causal connection between the protected act and the respondent's acts or omissions to act. The only proper reading of the ET decision was that the Tribunal accepted that the protected disclosure did not play a part in the decision to re-deploy 2 of the claimants and deny 1 claimant the opportunity to work.
The finding of the ET, that there was no breach of s47B of the ERA, was restored.
Charles is a Direct Access Barrister, which means that he can receive instructions from the public without recourse first to a Solicitor
contact: 07846 692325
Neutral Citation Number: [2011] EWCA Civ 1190
IN THE COURT OF APPEAL (CIVIL DIVISION)
The employer challenged the EAT's analysis on issues of vicarious liability and the causation test in whistle blowing cases.
First ground, it was submitted that the EAT erred in law in holding that the employer could in principle be vicariously liable for acts of victimisation of its employees in circumstances where the employees had committed no legal wrong.
Answer: The Court of Appeal found that the EAT had erred; the House of Lords in Majrowski unambiguously held that an employer could be vicariously liable only for the legal wrongs of its employees. In Majrowski Lord Nicholls defined vicarious liability as follows (para 7):
"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."
It followed that, absent any legal wrong, there was no room for the doctrine of vicarious liability to operate. The EAT had followed the case of Cumbria which was wrongly decided.
Second Ground:
Causation - The EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures:
i) the reasoning of the Employment Tribunal demonstrated that even if the EAT was correct in concluding that the employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here.
ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the prescribed reason but, as in unfair dismissal cases, it was whether the prescribed reason was the sole or principal reason for the action taken. Section 48(2) provides that the onus is on the employer to show the ground on which any act, or failure to act, was done:
Mr Linden QC counsel for the employer submitted that the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation giving effect to EU law. In the latter context it is incumbent on a court to read the legislation compatibly with EU law and the "no sense whatsoever" test is adopted in EU Directives. But where there is no such requirement, the legislation should be given its domestic meaning even if that means that the same statutory language may be differently interpreted depending upon whether there is an EU context or not: see the observations of Lord Brown of Eaton-under-Heywood in R (Hurst) v London Northern District Coroner [2007] 2 AC 189 para 52, UKHL 13. Accordingly, the EAT was wrong to consider that it was obliged to follow the principles set out in Igen v Wong.
The Court of Appeal agreed with the first submission, saying that the reasoning of the ET demonstrated that they did not think there was any causal connection between the protected act and the respondent's acts or omissions to act. The only proper reading of the ET decision was that the Tribunal accepted that the protected disclosure did not play a part in the decision to re-deploy 2 of the claimants and deny 1 claimant the opportunity to work.
The finding of the ET, that there was no breach of s47B of the ERA, was restored.
Charles is a Direct Access Barrister, which means that he can receive instructions from the public without recourse first to a Solicitor
contact: 07846 692325
Monday, 5 December 2011
Bleak House no more as The EAT moves
From 8 December the Employment Appeals Tribunal will move from the austere building on The Embankment!
The new address from 8 December will be 2nd Floor, Fleetbank House
2-6 Salisbury Square, London, EC4Y 8JX
telephone numbers, fax numbers and email addresses will remain unchanged.
The new address from 8 December will be 2nd Floor, Fleetbank House
2-6 Salisbury Square, London, EC4Y 8JX
telephone numbers, fax numbers and email addresses will remain unchanged.
Tuesday, 22 November 2011
Shock horror! H and S goes mad!
I was told today by an employment judge in Bedford that i was not allowed to plug in my laptop unless it had been PAT tested!
Why I thought was that? Perhaps if the machine I had become so reliant on to record evidence self combusted we could all be in huge trouble. Surely PAT tested appliances mean that they will not self combust but usually this protects us from machines burning us alive in our sleep not in broad daylight where if the thing did catch fire there would be several witnesses, a panel and 2 representatives prepared to throw themselves on the inferno??? Blast those technocrats!
Why I thought was that? Perhaps if the machine I had become so reliant on to record evidence self combusted we could all be in huge trouble. Surely PAT tested appliances mean that they will not self combust but usually this protects us from machines burning us alive in our sleep not in broad daylight where if the thing did catch fire there would be several witnesses, a panel and 2 representatives prepared to throw themselves on the inferno??? Blast those technocrats!
Monday, 14 November 2011
Worrying Return to the 80s
In a misguided attempt to perk up the small business sector The Government is unravelling a system which has worked well for over a decade. Firstly, we have been told that an employee has to wait 2 years before he or she can claim unfair dismissal. This may reduce the number of complaints to a tribunal slightly but leaves an employee exposed to bullying. We all know that a demoralized workforce leads to less productivity. Other mechanisms could have been used to decrease the number of complaints such as the imposition of an obligatory deposit to be paid for the losing employee.
The Government, we heard from The Prime Minister's lips, is now set to continue on it's myopic parade by unveiling another elephant trap for the poor employee, the 'confidential employer/employee 'discussion'. We know what the Government is getting at here. At the moment if a boss takes an individual into a dark room 'for a chat' if it relates to a disciplinary matter, an employee is entitled to have a fellow employee or union rep present. There is also a rule that if an employee is told that he might as well leave or is not pulling his weight it is seen as 'a vote of no confidence' by the employer and the employee can leave over it.
Well Mr Cameron in a speech heard last week, seems to be suggesting the usurpation of the tribunal in favour of back room chats. Where are the unions when we actually need them?
Charles Price Barrister
cp@no5.com
The Government, we heard from The Prime Minister's lips, is now set to continue on it's myopic parade by unveiling another elephant trap for the poor employee, the 'confidential employer/employee 'discussion'. We know what the Government is getting at here. At the moment if a boss takes an individual into a dark room 'for a chat' if it relates to a disciplinary matter, an employee is entitled to have a fellow employee or union rep present. There is also a rule that if an employee is told that he might as well leave or is not pulling his weight it is seen as 'a vote of no confidence' by the employer and the employee can leave over it.
Well Mr Cameron in a speech heard last week, seems to be suggesting the usurpation of the tribunal in favour of back room chats. Where are the unions when we actually need them?
Charles Price Barrister
cp@no5.com
Monday, 3 October 2011
Do your know your rights when it comes to your contract of employment?
A great article kindly printed with permission from writer Abigail Errington
Would you know your rights at work if you suddenly found yourself in the throws of redundancy proceedings, discovered you were pregnant or quite simply thought you were working too many hours or travelling more than you thought you should be?
There have been some big changes to Employment Law this April, which every employee should be aware of, in order to know their statutory employment law rights at work.
Recent legal changes include:
phasing out of the default retirement age of 65
abolition of the statutory retirement procedure
an increase to statutory maternity, paternity and adoption pay
additional paternity leave
In these times of economic instability it is a good idea to review or at least be aware of the terms and conditions of your employment contract, so that you are prepared for any eventuality.
Julie Edmonds, employment litigator at MTA Solicitors outlines the key issues and the pitfalls to look out for:
What Should An Employment Contract Include?
1. It is important to have a contract of employment so that you know on what basis you are working for your Employer/Company. If you have a contract it will be clear whether you are employed, a worker or self employed. This is important when it comes to knowing your rights and what you are entitled to. Ie:
employee (you are entitled to statutory maternity, paternity and adoption leave, right to claim unfair dismissal after years service, statutory redundancy pay)
workers tend to be contract or agency based and subject to certain criteria, workers are entitled to things such as national minimum wage, right not to have deductions made from wage, Statutory Sick Pay, rests and paid holiday under working time regulations
self-employment – a person who works for himself/herself instead of an employer - you will not have a contract and will not have employment rights as such as you provide a service or trade for a fee in your own right. You are more likely to have a contract to provide services or a contract for services
2. Ideally you should always request and/or be given a written contract of employment if you are an employee. If it is not in writing however it will be created by conduct over time. You are entitled to be given a written contract in the first 2 months of employment after you have been employed for 1 month. So if you don’t have anything in writing after this time – don’t be afraid to ask for it. Having a contract in writing makes disputes with Employers less likely as it is clear from the start what both parties intend and agree to.
3. All contracts of employment have an implied term of mutual trust and confidence. This implies respect on both sides of the relationship and means that neither you nor your employer can act completely unreasonably. The ‘terms’ are the legal part of the contract.
4. Ideally the contract will be in writing so the terms are clear but they do not need to be written down to be terms. You must understand what is on your contract and what you are agreeing to at the start so you know what rights and obligations there are on both sides.
5. The principal statement of written employment particulars should include
name and employers name, job title, start date, if employment is not permanent, how long the contract is expected to last for, pay rate and details of pay day, hours of work, holiday entitlement, place of work, sick pay, notice periods, information re disciplinary and grievance procedures - which can refer to an employee handbook for full details so long as this is kept updated and pensions.
Key areas to look out for in your contract of employment
Is your employer going to pay you per hour worked or an annual salary based on a set number of hours per week?
how many hours per week is your employer expecting you to work? Is there a clause that states the number of hours followed by ‘or as required by the business or to satisfy business needs’ – this needs to be clarified
Is there a right to paid overtime or is this covered by the annual salary?
Is your place of work a set location or is there a mobility clause in your contract? Is there a limit on what is considered reasonable mobility under the clause such as distance or travelling time eg max 3 hours per day?
Are you entitled to full pay if you are off sick and if so for how long? If there is nothing in writing then the default position will be SSP
Holidays – are you entitled to carry over holiday from one year to the next? What is the holiday year
(Jan to Dec?). Does your holiday include or exclude bank holidays?
Are there any restrictions in the contract that you will continue to be bound by after you leave and for how long - such as contacting customers or working for competitors? You will need to clarify these areas
Check out any confidentiality clauses
Who owns the intellectual property rights that are created while you are an employee?
Finally, look out for flexibility clauses, especially those that are vaguely worded. Flexibility may be in relation to shift patterns or mobility clauses that can change your place of work. However, a flexibility clause that is too wide and just says that the employer can change your terms from time to time cannot be used to bring in completely unreasonable clauses.
All these aspects of a contract should be considered and understood so that you are in the best position should you get into any kind of dispute with your employer. MTA Solicitors provide expert Employment Law legal advice and services for both Employees and Employers from anywhere in England and Wales. There are offices based in Kent, London and Manchester
Would you know your rights at work if you suddenly found yourself in the throws of redundancy proceedings, discovered you were pregnant or quite simply thought you were working too many hours or travelling more than you thought you should be?
There have been some big changes to Employment Law this April, which every employee should be aware of, in order to know their statutory employment law rights at work.
Recent legal changes include:
phasing out of the default retirement age of 65
abolition of the statutory retirement procedure
an increase to statutory maternity, paternity and adoption pay
additional paternity leave
In these times of economic instability it is a good idea to review or at least be aware of the terms and conditions of your employment contract, so that you are prepared for any eventuality.
Julie Edmonds, employment litigator at MTA Solicitors outlines the key issues and the pitfalls to look out for:
What Should An Employment Contract Include?
1. It is important to have a contract of employment so that you know on what basis you are working for your Employer/Company. If you have a contract it will be clear whether you are employed, a worker or self employed. This is important when it comes to knowing your rights and what you are entitled to. Ie:
employee (you are entitled to statutory maternity, paternity and adoption leave, right to claim unfair dismissal after years service, statutory redundancy pay)
workers tend to be contract or agency based and subject to certain criteria, workers are entitled to things such as national minimum wage, right not to have deductions made from wage, Statutory Sick Pay, rests and paid holiday under working time regulations
self-employment – a person who works for himself/herself instead of an employer - you will not have a contract and will not have employment rights as such as you provide a service or trade for a fee in your own right. You are more likely to have a contract to provide services or a contract for services
2. Ideally you should always request and/or be given a written contract of employment if you are an employee. If it is not in writing however it will be created by conduct over time. You are entitled to be given a written contract in the first 2 months of employment after you have been employed for 1 month. So if you don’t have anything in writing after this time – don’t be afraid to ask for it. Having a contract in writing makes disputes with Employers less likely as it is clear from the start what both parties intend and agree to.
3. All contracts of employment have an implied term of mutual trust and confidence. This implies respect on both sides of the relationship and means that neither you nor your employer can act completely unreasonably. The ‘terms’ are the legal part of the contract.
4. Ideally the contract will be in writing so the terms are clear but they do not need to be written down to be terms. You must understand what is on your contract and what you are agreeing to at the start so you know what rights and obligations there are on both sides.
5. The principal statement of written employment particulars should include
name and employers name, job title, start date, if employment is not permanent, how long the contract is expected to last for, pay rate and details of pay day, hours of work, holiday entitlement, place of work, sick pay, notice periods, information re disciplinary and grievance procedures - which can refer to an employee handbook for full details so long as this is kept updated and pensions.
Key areas to look out for in your contract of employment
Is your employer going to pay you per hour worked or an annual salary based on a set number of hours per week?
how many hours per week is your employer expecting you to work? Is there a clause that states the number of hours followed by ‘or as required by the business or to satisfy business needs’ – this needs to be clarified
Is there a right to paid overtime or is this covered by the annual salary?
Is your place of work a set location or is there a mobility clause in your contract? Is there a limit on what is considered reasonable mobility under the clause such as distance or travelling time eg max 3 hours per day?
Are you entitled to full pay if you are off sick and if so for how long? If there is nothing in writing then the default position will be SSP
Holidays – are you entitled to carry over holiday from one year to the next? What is the holiday year
(Jan to Dec?). Does your holiday include or exclude bank holidays?
Are there any restrictions in the contract that you will continue to be bound by after you leave and for how long - such as contacting customers or working for competitors? You will need to clarify these areas
Check out any confidentiality clauses
Who owns the intellectual property rights that are created while you are an employee?
Finally, look out for flexibility clauses, especially those that are vaguely worded. Flexibility may be in relation to shift patterns or mobility clauses that can change your place of work. However, a flexibility clause that is too wide and just says that the employer can change your terms from time to time cannot be used to bring in completely unreasonable clauses.
All these aspects of a contract should be considered and understood so that you are in the best position should you get into any kind of dispute with your employer. MTA Solicitors provide expert Employment Law legal advice and services for both Employees and Employers from anywhere in England and Wales. There are offices based in Kent, London and Manchester
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