The agreed terms of an employment contract are of paramount importance in determining the rights and duties of both the employer and employee.
Each employee must be given a written statement of their terms and conditions of employment, as per provisions under the Terms of Employment (Information) Acts, within two months of commencing employment.
Guidelines for creating an employment contract
All employer/employee relationships involve a contract of employment whether this is written or implied and it governs many aspects of the employer/employee relationship.
It is important to understand what information must be contained in a contract of employment and be mindful that employers have a responsibility to issue certain terms and conditions to employees.
With the enactment of the Employment (Miscellaneous Provisions) Act, employers must now provide new employees their 5 core terms of employment in writing within 5 days of them starting employment and the rest of the terms of employment must be given within two months of the employee commencing employment.
The Act also introduced banded hours; it prohibits zero-hour contracts except in the case of work carried out in emergency circumstances or to provide short term relief work to cover routine absences and it has also simplified the National Minimum Wage rates.
Express terms are those which are actually stated in writing or given verbally.
Written express terms are not restricted to written employment contracts but can include a number of the organisation’s other documents, such as a staff handbook, unless the provisions are deemed not to have contractual effect.
Before drafting express terms, employers need to be familiar with the relevant law, such as employee status, the rules governing written particulars, equal pay and the minimum wage, fixed-term and part-time work, flexible working, parental leave and working hours.
The express terms must comply with any minimum legal standards such as the right to paid holidays and the right to daily and weekly rest breaks.
All employees and, from 6 April 2020, all workers too, have a statutory right to a written statement of particulars of employment setting out certain key employment terms on their first day of work.
Terms can also be implied into contracts. This may happen because the term is:
- Incorporated by collective agreements (agreements with trade unions recognised by the employer).
- Incorporated by workforce agreements (for example, agreements with the whole workforce covering issues such as entitlement to breaks).
- Incorporated by statute.
- Incorporated into individual contracts by custom over a period of time.
- So obvious that the term is assumed to have been implied.
- Needed to give ’business efficacy’ to the contract (that is, to make the contract work properly).
Examples of terms that are implied into a contract of employment include:
- A duty of mutual trust and confidence between the employer and employee.
- The employer’s duty to provide a safe system of work and safe workplace.
- The right to receive at least the national minimum wage or living wage (implied by statute).
- The right to a minimum period of notice (implied by statute).
- Equality relating to men and women’s pay (implied by statute).
As many terms as possible should be clearly set out in writing and given to the new employee before or when they start the job. This will help to avoid uncertainty or a dispute between the employer and the employee about the terms.
If you need help in drafting or reviewing your documentation, please contact us at HR Buddy on 064 6698034 or email to email@example.com