We can draft Contracts of Employment for employees and directors, Consultancy Agreements for freelancers and Policies and Procedures for your Employee Handbook.
A contract is your opportunity to be clear about matters such as working elsewhere and confidentiality during and after the working relationship. Restrictive covenants preventing competition after employment has ended need to be carefully considered to ensure that they are both enforceable and work for you. We don’t just provide off the shelf template documents but ask you the questions you need to think about in deciding how you will work. We will get to know you, your business and the role to ensure that you are best protected. Our documents are bespoke, designed to meet the needs of you and your business.
Where directors are also shareholders, we can draft both directors’ service contracts and shareholders’ agreements to guarantee that they are seamless and work together.
Employee handbooks can include policies on issues such as Equal Opportunities, Bullying and Harassment, Parental Leave and Flexible Working requests and Whistleblowing as well as more practical matters such as social media, the internet and telephone use. Formal Disciplinary, Performance and Absence Management and Grievance Procedures help with compliance but also empower managers to tackle problems head on.
Because employment law changes rapidly, contracts, policies and procedures can rapidly get out of date. As well as drafting documents from scratch, we can carry out an audit of your existing paperwork and let you know what needs amending.
It is usually possible to agree a fixed fee to draft or audit contracts, policies and procedures. Contracts, policies and procedures are included in our retainer offering for employment matters.
A Contract of Employment defines the working relationship. It exists whether or not anything is written down. Employers are required to give certain written particulars to each employee. Having a written Contract of Employment allows the employer to set out clearly all of the necessary terms as well as imposing other obligations such as confidentiality or post termination restrictive covenant.
Without a written contract, there is nothing to stop an ex-employee poaching your clients or staff. Bespoke restrictive covenants can prevent ex-employees approaching or dealing with clients with whom they built up a relationship or using confidential information to gain competitive advantage.
There are certain written particulars that every Contract of Employment should include, such as hours of work, pay and provision for holiday and sickness. Consider also using a probation period with a shorter notice period for the first few months of employment. Contracts of Employment can also contain confidentiality clauses and restrictive covenants preventing ex-employees from poaching your clients or staff.
You might be tempted to use one of the free templates available on the internet. Be aware that whilst they might include the simple written particulars, clauses on confidentiality and restrictive covenants will not be drafted with your business in mind and may not be enforceable. Template Contracts of Employment do not come with advice about what is appropriate in your specific situation.
Written particulars of employment must be given within 2 months of the start of employment. However, the sooner the employee is sent their Contract of Employment the better: contractual obligations will only apply once the employee has seen and agreed to them, either by signing the Contract or by starting work for you. If you haven’t sorted your contract in time, it is never too late – we can discuss how to get agreement on Contracts of Employment for existing employees.
Well drafted Contracts of Employment give the employer the right to vary their terms. However, significant change should be done in consultation with employees in order to avoid claims for constructive dismissal arising out of a unilateral change to the Contract of Employment. It may be necessary to terminate the existing Contract of Employment (using the contractual or statutory notice period) and offer a new Contract, but this might risk an Unfair Dismissal claim. As well as drafting changes to your Contracts of Employment, we can coach you through the process of consultation with employees over those changes, or terminating and offering new Contracts if agreement cannot be reached.
Restrictive Covenants impose obligations on employees after their employment has ended. They usually prevent use or disclosure of confidential information, contact with clients, poaching staff or even working for a competitor. They can be a valuable weapon in preventing unfair competition from ex-employees.
Restrictive covenants are enforceable only if they go no further than is necessary to protect a legitimate business interest. They should be limited in scope (for example only referring to clients or employees with whom the employee in question has had contact) and in time (lasting only the length of time necessary for new staff to develop relationships with clients). It is important to draft bespoke restrictive covenants to deal with the particular role within the particular business: widely drafted off the shelf templates are unlikely to be enforceable.
Zero Hours Contracts can be Contracts of Employment or casual worker contracts. They are used when the amount of work available for staff varies and are common in retail, hospitality and the care sector. They should be carefully drafted to ensure that they comply with recently introduced regulations dealing with perceived abuse of Zero Hours Contracts.
A Fixed Term Contract is a Contract of Employment that is limited in time, usually to a number of months or years. Fixed Term Contracts are often used to cover particular projects, employee absence or when limited funding is available. Successive Fixed Term Contracts lasting more than 4 years are treated as permanent contracts unless the fixed term can be justified on objective grounds. The non-renewal of a Fixed Term Contract is treated as a dismissal under Unfair Dismissal legislation.
Whether to engage an employee or freelance staff is ultimately a business rather than legal decision. The difference is essentially the level of control the business needs or wants to assert over its staff, and their level of integration into the organisation. Whichever decision is made, it is important that contracts reflect the reality as the Courts and Tribunals will consider the situation on the ground as well as the contract in determining employment status. Getting in wrong can be very expensive in terms of past holiday pay and pension contributions.
A contract is not strictly needed for casual staff but it is certainly desirable. It is not unusual for situations to develop where casual staff are “on the books” for considerable periods of time and for their hours to become more and more regular. A casual contract makes the levels of obligation between hirer and staff clear, so that both know where they stand without any ambiguity that might lead to a challenge based on employee status. It can also impose confidentiality obligations and deal with matters such as holiday pay.
As a bare minimum, employers need to have procedures to deal with Discipline and Grievance in line with the ACAS Code. Policies on Equal Opportunities, Anti-Harassment or Whistleblowing can help show compliance. Other policies set out the ground rules for matters such as social media, computer and telephone use, reporting sickness, booking holidays, claiming expenses or dress codes. Policies on parental leave, compassionate leave and flexible/home working encourage consistency of approach and ensure staff know how these matters will be dealt with. The best place to host these policies and procedures is an Employee Handbook, which might be in virtual or physical form.
We suggest that Employee Handbooks contain Disciplinary, Capability and Grievance Proceduresas well as Policies on claiming Expenses, booking Holidays, notifying Sickness Absence, Equal Opportunities, Anti-Harassment, Whistleblowing, Parental Leave and time off for ante-natal appointments, Compassionate Leave or time off for dependants, Flexible Working, Telephone/Computer Use and Social Media. You might also want to consider a Dress Code or policy on time off for public duties. The Employee Handbook is also a good home for Data Protection Notices, though you will need to make sure that they are adequately drawn to employees’ attention.
You may want some of your policies and procedures to apply to casual and freelance staff: they are likely to claim expenses in a similar way for example. It is important however to ensure that policies and procedures do not exercise too much control over casual and freelance staff as that might lead to a challenge to their employment status. If you have significant numbers of casual or freelance staff, it is better to have adapted policies making some of the same points (for example in relation to Equal Opportunities or Whistleblowing).
We recommend that policies and procedures contained in the Employee Handbook are expressed not to be contractual. This means that they can be easily changed to deal with developments in legislation or case law or when there is a change of approach or policy on a particular issue. Handbooks should be kept under review and regularly audited to ensure that they are up to date. As well as drafting documents from scratch, we can carry out an audit of your existing paperwork and let you know what needs amending.
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