The relationship between employer and employee is regulated in two ways. The most obvious is by contractual agreement – by the terms in an employment contract. The other is by statutory law passed by Parliament, designed to protect the worker.
The rights that are given by statute cannot be reduced by agreement. However, there is nothing to stop an employer trying to change an employee’s impression of his or her rights by including terms in a contract that would not be enforced in a court or tribunal.
It is useful for both an employer and an employee to know what an employment contract should cover, and what, if covered, may not be enforceable.
Statement of particulars of employment
The law states that an employer must provide a statement of particulars of employment (also called a principal statement) to an employee before starting work if an employment contract covering all the same points hasn’t already been provided. This protects the employee by making him or her aware of certain terms of employment.
It is, however, not the same as a contract of employment. By providing it, an employer discharges its obligations, but no term within it favours the employer. A reason to use a written contract is to obtain the agreement of the employee to comply with all the items contained in it, some of which do favour the employer.
The statement of particulars must contain the following within a single, clearly written document. If some detail is provided in policy documents (such as a staff handbook), these can be appended, but they are not replacements.
The information that must be provided is:
the employee’s name
the employer’s name
a job title or job description
the date of the start of employment
the amount and frequency of pay
hours of work
place of work
collective agreements that affect employment
if the employment is fixed term, or not permanent, when it is expected to end
Some information can either be included within the statement, or referenced. This includes:
disciplinary and grievance procedures
pensions and pension schemes
If you are employed in the UK, but expected to work abroad for more than one month, the written statement of employment particulars must also cover:
the duration of the time that will be spent abroad
the currency of pay
additional benefits or pay (such as for hotels or food)
terms relating to returning to the UK
From an administration point of view, it is easiest either to provide an employment contract before the employee starts, or to include a principal statement in the offer letter.
Some terms in an employment contract are not written down, but rather implied.
Employees in similar roles have the right to be treated similarly, regardless of whether he or she is fixed term, part-time, or permanently employed. That means that the terms of employment should be similar.
If more than one person is employed, there is a fine balance between tailoring the contract to suit a particular employee on the one hand and providing uniformity for fairness on the other hand. So far as possible we advise that as few versions of employment contracts are used as possible.
It is particularly important that some staff are not "preferred" over others by allowing concessions that are not necessary for the job, such as long lunch hours or excessive motoring allowance.
Built in flexibility
Wherever possible, an employer can build in flexibility to the contract. For example, rather than giving a fixed address for the place of work, it is reasonable to have the contract provide for a workplace within a certain range of a fixed place, such as within ten miles from a specific city centre building. Similarly, job descriptions can be non-specific so that staff can be redeployed into new positions without undue difficulty.
Confidentiality (or non-disclosure) is hard to enforce, but including terms in the employment contract does remind the employee that discussing work outside of the office could have implications for the business and for customers.
Confidentiality could be covered in separate NDA agreements for different types of employee.
Protection of intellectual property
There is little statutory law that protects an employer from damage to intellectual property (IP) by an employee. IP protection therefore needs to be covered comprehensively in an employment contract.
IP includes know-how as well as well as information. While many employers seek to protect customer data or computer code, safeguarding procedures and methodologies is often neglected.
The employee should be reminded that IP created in the course of work belongs to the employer. By law it already does, but some employees may not know this.
The employee should be reminded that all intellectual property remains the property of the employer when employment ends.
There should be restrictions on copying or transferring IP within documents such as an IT policy. These restrictions could be further referenced in the employment contract.
An employer cannot easily prevent a former employee setting up in competition. Provisions against competition are generally contrary to national policy. To be effective they must not be unreasonable. Reasonableness depends on the circumstances. It applies to the type of work, the duration of the restriction and the geographical extent of restriction. A blanket ban of starting a business that operates in the same industry would probably be unfair. A prohibition of soliciting customers for three months might be deemed to be fair.
For senior employees, or employees with access to sensitive information or who interact with clients regularly, a garden leave clause allows an employer to instruct the employee to remain at home and not undertake any work during their notice period on termination of their employment contract.
The main advantages of such a clause relate to it allowing the business to continue to operate as usual, without disruption by the leaving employee and without fear that they may poach customers or employees or steal confidential information.
Policies and procedures
Employment contracts cannot be changed without the consent of the employee.
Certain aspects of working do change regularly however. For example, on the introduction of new statutory paternity rights, the employer may extend the rights an employee has in respect of leave.
Policies also allow you to notify employees about how your business operates with respect to issues close them such as IT use monitoring.
It is best to leave procedures and matters of business policy out of the employment contract, but instead refer to them (perhaps collectively within the staff handbook). That way, when there is a change, a single policy document can be changed without having to create new contracts with every member of staff. All that is required is that employees are notified of the changes.
The other advantage to this is that by having a single point of reference for all staff, an employer cannot unintentionally treat employees differently.
Further information and useful documents
You may wish to read more about setting a business up as an employer.