When the Written Word’s not Black and White.

By Andrew Knorpel on 16 April 2015

You’d like to think that if you’ve taken the trouble to draw up a contract or statement of terms, then what you’ve written down should set out the terms of the relationship between you and your staff.  But, even aside from minimum statutory obligations (such as for national minimum wage, holiday or notice periods), that’s not always the case.

Often, an employer will try to avoid employment law obligations by stating that an individual is engaged under a “contract for services” (possibly with the right to provide a substitute if they are not available).  The written contract will always be the starting point, but if the written arrangement is not reflected in practice, there may be a risk that the individual is employed, notwithstanding any statement that “this is not a contract of employment”.

It’s always good to incorporate flexibility in relation to place or hours of work.  Contracts often include mobility clauses allowing the employer to move the employee to another location (on either a temporary or permanent basis).  However employers must remember to exercise these clauses in a reasonable manner to avoid breaching the implied term of mutual trust and confidence.

Particular care must also be given when attempting to amend terms and conditions to an employee’s detriment on the basis of a general clause purportedly allowing an employer to do so unilaterally.  There have been a number of recent cases on this point, the latest being Hart v St Mary’s School (Colchester) Ltd.  In this case, it was held that reference to hours of work being “subject to variation depending upon the requirements of the School Timetable” and the employee being “notified” of changes were not sufficient.  If an employer does want to reserve such a right, it must do so in very clear language and then exercise that right reasonably (which will always require meaningful consultation).

Whilst on the subject of hours of work, in light of the provisions on zero hours contracts in the Small Business, Enterprise and Employment Act 2015, it will soon be the case that provisions which prevent zero hours workers (or those not guaranteed a specified minimum income) from taking up jobs under other contracts will be unenforceable.

Finally, at the end of the employment relationship, an employer might be looking to enforce post-termination restrictions on a departing employee, but these will only be enforceable if they go no further than protecting the legitimate business interest of the employer and are reasonable in all the circumstances.  Once again, clear and precise drafting will be all important.

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