EMPLOYMENT LAW
Employment Law Contract Questions
We list here the most commonly asked questions in relation to employment law contracts. If you have any other questions please contact us using the information at the bottom of this page.
What happens if I do not have a written contract of employment?
Whilst there are benefits to having a contract of employment, there is no requirement for there to be a written contract of employment. A contract will still exist between the employer and employee. An employer does have an obligation to provide employees who have worked for them for a month or more with a statement of their main terms and conditions of employment. This must be given within the first 2 months of employment and must include
- the names of the employer and the employee;
- the date when the employment (and, if different, the period of continuous employment) began;
- wages or salary and the intervals at which they are to be paid, which is subject to statutory guidance;
- hours of work, which is subject to statutory guidance;
- holiday entitlement, which is subject to statutory guidance;
- entitlement to sick leave and sick pay;
- pensions entitlement;
- your and your employee's entitlement to notice of termination, which is subject to statutory guidance ; their job title or brief job description;
- how long their employment is expected to continue if it is not permanent, or if it is for a fixed term, the date when it is to end;
- place of work;
- details of any collective agreements (i.e. any agreements made between you and employee representatives, for example trade union representatives) that directly affect the employee's terms and conditions;
- the employer's disciplinary rules and grievance procedures or details of the person with whom the employee should speak if they have a grievance;
- details of any occupational pension scheme run by the employer, whether or not it is contracted out of the State Earnings Related Pension Scheme (SERPS), whether or not the employee has chosen to join that scheme and if so when the employee will be able to join, if your pension scheme rules out membership until the employee has worked for a specified time.
- Further information is required to be given and different requirements apply to employees who are working abroad for more than one month.
Can the written statement simply tell the employee to check other sources of information, such as a notice board or handbook?
The statement can tell the employee to check other documents for details of:
- pensions;
- sickness entitlement;
- disciplinary rules;
- any further steps which follow from an employee making an application under the employer's disciplinary or grievance procedures.
The documents must be reasonably accessible to the employee. The statement can also tell the employee to check the law or refer to a reasonably accessible collective agreement for details of notice entitlement. All other details must be given in the statement itself.
What happens if an employer does not give an employee a written statement that he or she has the right to?
If the required written statement has not been provided or certain information has been omitted, then an employee is entitled to refer the matter to an employment tribunal at any time up to three months after the contract of employment has come to an end. The employment tribunal will then decide what particulars should have been given to the employee.
Can the terms and conditions covered in the statement or a contract of employment be changed?
The written statement of particulars and the contract of employment are binding on both the employer and employee. This means that it is unlawful for one party to change the terms and conditions in the contract without the agreement of the other. Whilst the written statement of particulars does not make any provision for this, a contract of employment may include provisions allowing the employer to make important changes - for example, requiring the employee to move to a different place of work or to undertake a different type of work. In the case of a change covered by a provision of this kind, there is no variation of the terms and conditions in the contract and the change will be lawful.
It is always open to either party to seek to renegotiate the terms and conditions with the other. If a variation of contract affects one or more of the terms and conditions required by law to be covered in the employee's written statement of employment particulars, then the employee must be given written notification of this within one month of the variation.
If an employee is unhappy with the variation of contract but makes no objection and continues to work under the new terms and conditions, he or she might be considered to have accepted the change after a period of time. The variation will then be incorporated into the contract. The length of time required for this to occur will depend on the circumstances.
If, however, the employee informs the employer that they object to the variation, the employer should try to negotiate with the employee. If the employee maintains their objections, then the employer has a choice. They can either dismiss the employee or enforce the varied contract terms on the employee. If the employee has been employed for a continuous period of one year or more, the employee may be able to present a claim for unfair dismissal either on the basis that the employer has ended the contract or on the basis that they have resigned as a result of the employer's breach of contract. Once the contract has been terminated, an employer is able to offer the job on different terms and conditions either to the dismissed employee or to a prospective employee. Claims for unfair dismissal must be presented within 3 months of the date the employment ended. It will then be for the employment tribunal to decide whether it was reasonable for the employer to enforce the variation and dismiss the employee or whether it was reasonable for the employee to resign in the circumstances.
Such a situation can also lead to the employee bring a claim for breach of contract against the employer.
Can an employer bring a claim for breach of contract against an employee?
Yes. If an employer suffers financial loss because an employee has breached its contract of employment and such financial loss is capable of being measured and is caused by the breach then it is possible for the employer to seek damages (i.e.: financial compensation to put the employer in the position they would have been in had the employee complied with its contractual obligations) from the employee.
In certain circumstances, such claims can be heard by an employment tribunal, although there is a cap on the amount of damages an employment tribunal can award for breach of contract claims (currently £25,000.00). Alternative, the claim can be brought against the employee in the civil courts.
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