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Contracts

Getting ready for a return – flexible contracts

Posted on: February 11th, 2021 by Ginny Hallam

If you’re planning to continue the trend away from traditional and carry on with the contemporary, don’t forget to check that your employment contracts will keep pace.

Place of work – clearly setting out the place of work remains important – the consequence of failing to do so means you may find yourself with expenses claims for travel to the office from home.

Mobility – setting out clearly the terms of any flexibility and the circumstances when it might be withdrawn should avoid dispute if the new approach doesn’t work well.

Variation – we’ve all experienced that it’s impossible to predict what the future holds – giving yourself a general right to amend terms will provide greater flexibility to react to any future uncertainty.

Get in touch if you’d like us to review your current contracts or support you with making changes moving forward.

 

This update is accurate on the date it was sent (16 February 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Homeworking and opportunities to ‘set up shop’

Posted on: December 3rd, 2020 by Ginny Hallam

There’s never been a greater time to progress self-employed ambitions. With change always comes opportunity and for those with a burning ambition to do it for themselves, being out of sight means the opportunity to create, innovate and develop business opportunities which may not be aligned to your own.

It seems that ‘side hustling’ is on the increase so what can you do to protect your business…

  1. Post termination restrictions – keep them up to date as your business grows and as you promote internally (they’re interpreted at the point they were signed, so if they haven’t kept up with the individual’s progression at best there will be gaps in the protection they offer). Ensure they require the employee to flag to you when they have secured work elsewhere and make disclosing restrictions to a new employer imperative.
  2. Confidential information – call out the ‘crown jewels’ in your employment contract, store the information securely and don’t share passwords flippantly.
  3. Right to search – include provision to do so within your employment contract and don’t forget to carry out an all-important ‘data protection impact assessment’ if you’re planning on searching emails and browser history.
  4. Put appropriate security measures in place – ensure that documents are password protected and there is a system in place to alert you to a significant download of information.
  5. Right to veto working for others – ensure your employment contracts insist upon employees disclosing work for others and give you the right to ask them to stop doing so.

Get in touch to discuss reviewing and updating your employment contracts.

 

This update is accurate on the date it was sent (3 December 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Future-proofing: changing contract terms

Posted on: October 29th, 2020 by Ginny Hallam

Whether it’s exploring cost savings, responding to local lockdowns or ensuring your contracts are flexible enough to deal with the ever-changing ways of working – there are lots of reasons why you may want to make changes to contracts.

We’ve set out below our thoughts on the options available to employers when making changes to contractual terms.

Get agreement/ negotiate – asking employees to expressly agree to a change (or giving them something in return for agreeing) carries the least risk – but in practice, it can be tricky to achieve!

Flexibility clause – check whether you have a clause within your contract giving you the right to make certain changes (for example, a mobility clause allowing you to change their place of work). Approach this option with caution – changes under a flexibility clause need to be reasonable (and usually minor) otherwise employees could argue you’ve exercised the clause unreasonably and bring claims for breach of contract, or even that you’ve given them no option but to resign and claim constructive dismissal.

Argue implied agreement – if you don’t get agreement or you don’t want to ask for agreement, you could try to make the change and then argue that employees have accepted the new terms through their continued employment if they don’t challenge it. You should always take advice on this approach, as successfully arguing implied agreement depends on the type of contractual clause you’re changing.

‘Fire and rehire’ – if, after consultation, you’re unable to reach agreement about the proposed change, you could terminate and offer to re-engage on the new contract terms. However, this is a somewhat ‘nuclear approach’ as employees with two or more years’ service could bring claims for unfair dismissal. For these reasons, it should generally be a last resort.

There’s lots to consider when making changes to contracts; for example, whether there are contractual terms contained in other agreements, such as a collective agreement with a trade union and whether any terms are protected under TUPE. Get in touch if you’d like to discuss changing terms with our expert employment lawyers.

Here’s a reminder of the changes you can make to future-proof your contracts, and more detail on the packages we have to support you in making those changes.

 

This update is accurate on the date it was sent (29 October 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Employment contracts pt.2 – preparing for uncertainty

Posted on: October 8th, 2020 by Ginny Hallam

2020 has shown us nothing is impossible – with positive test numbers continuing to rise and further restrictions being rolled out, your employment contracts need to protect your business and allow you to adapt with each change.

Here are our thoughts on a few of the key terms you’ll want to consider / update to ensure you’re ready to deal with uncertainty.

Short-notice holidays – a good way of reacting quickly and cost-effectively to a downturn in work or an unproductive period whilst an employee serves notice.

Company property and benefits – requiring property (such as company cars / car allowances) to be returned or benefits to be pared back during periods where the employee is home-working or not able to carry out their work in the usual way can be a significant cost saving and ensures that company resources are being directed in the right way.

Payment in lieu of notice (PILON) – make sure PILON clauses call out that it’s only basic pay that will be paid (rather than any compensation for lost benefits during time they would have otherwise worked). Give yourself the option to pay in monthly instalments rather than as a lump sum and you could go as far as to say if they find employment during what would have been the notice period any further PILON payments stop when they start the new role.

Issuing new contracts to employees – remember you’ll need to ensure that they include the mandatory additional clauses required under The Good Work Plan. Click here for our previous update on the GWP. For a reminder of further key terms you could include / update – see our earlier update here.

Click here for more information about our contract review and redraft packages.

 

This update is accurate on the date it was sent (08 October 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Employment contracts pt.1 – lockdown learning and future-proofing

Posted on: September 30th, 2020 by Ginny Hallam

With local lockdowns and the government’s latest response confirming home-working may continue into 2021, it’s important to consider whether your employment contracts, policies and practices are fit for purpose to deal with the ever-changing approach to working. 

Here are our thoughts on a few of the key terms you’ll want to consider / update to ensure you create flexibility and commercial protection in these uncertain times:

Confidentiality – with the challenges that home-working brings, individuals considering jumping ship have a great opportunity to take your contact lists, marketing plans and pricing structures. Introducing or tightening up confidentiality and property clauses are a must at this time along with the right to monitor individuals’ use of your systems.

Lay-off/ short–time working – if your contract doesn’t include a lay-off or short-time working provision, now is the time to do something about it. With the furlough scheme coming to an end and the new Job Support Scheme requiring employees to work a third of their hours, including contractual lay-off and short-time working clauses provides you with greater flexibility to manage your workforce without having to ask for their consent to do so.

Post-termination restrictions – if they don’t explain that periods of absence will be discounted in determining the key relationships that are protected, you should review your restrictions. So often, restrictions explain that ‘stuff’ happening just before exit is protected (whether it’s relationships, sales or tenders) but if an individual has been on furlough, sick or on statutory leave, you’ll find that if nothing has been going on just prior to exit then nothing will be protected! With the appropriate amendments to post-termination restrictions this can be avoided.

Click here for more information about our contract review and redraft packages.

 

This update is accurate on the date it was sent (01 October 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.