The title of this post may cause some surprise – employment contracts are vital aren’t they ?
Well, yes they are but they can also end up boxing an employer into a corner – but why ?
The reason, according to Ben Jones, employment lawyer, is that employment contracts are the same as any other form of contract – once agreed, neither party to the contract can alter the terms without the others consent.
This creates particular difficulties in the employment relationship where things can change rapidly, both in terms of legislation and employment trends. By way of 2 brief examples, 2 major changes in workplaces have evolved very quickly :-
1. the rise of remote or home working
2. the use of the internet and social media in the workplace
Starting with the premise that there may be some logical reasons to leave some issues out of an employment contract, there remains a sensible solution so that both employer and employee know where they stand, yet there is flexibility without the need to try and vary the contract which may create friction. The solution may be to include a number of provisions in policies and procedures or staff handbook, and make clear that these documents do not form part of the contract and are variable at the employer’s choice.
Employers should be aware that the above suggestion is not a panacea for all employment law issues and that certain issues such as pay, working hours, role and holidays do not to remain in the contract. It should also be remembered that simply having a set of detailed policies and procedures in no way obviates the need to seek a consensual and happy workplace and to treat staff consistently and fairly.
Employment law is a highly sensitive and political area, employers should also remember that regardless of what is included in contracts of employment or policies and procedures. employment law is fundamentally statute based and statutes will override unlawful or even potentially illegal content in contracts or policies or actions by employers. Remember also that Tribunals and Courts will often interfere in employment contracts to imply terms due to the perceived inherently unequal bargaining position between employer and employee.