Employers often include a provisional probation period in the employment contract – generally between one and three months – when taking on a new recruit.
This ensures that the person is happy and capable of fulfilling the responsibilities of their new role, whilst also defining a clear structure and time period for their employer to identify areas of improvement.
There are two types of notice period: statutory and contractual.
While statutory notice is required by law and depends on an employee’s length of service, contractual notice periods are company policy that must be specified as part of the main terms and conditions of employment. This period can be the same as, or longer than, the statutory minimum, but not shorter.
Compulsory overtime is a contractual obligation which clearly states that the employee is required to work additional hours, often on a regular basis.
Just as employers must include accurate detail of normal working hours in the main terms of the employment contract (see working time regulations), they must also include reasonable detail of expected compulsory overtime.
Shortage of work
There are times when, due to a shortage of work, the employer may need to introduce lay-offs or short-time working. These can be more attractive options than carrying out redundancies where the shortage of work is only temporary.
However the employer must first check that they have a clause in the contract of employment which allows them to impose lay-offs or short-time working otherwise they do not have recourse to such an option.
Changing terms and conditions
There may be times when it becomes essential for an employer to change the terms and conditions of an employee’s employment contract, or to collectively change the terms and conditions of all the employees’ contracts – otherwise known as ‘varying contracts’.
It is possible for an employer to change terms and conditions; however, it cannot usually be done without consultation and agreement from employees. If the change in terms and conditions will potentially lead to redundancies, and there are 20 or more employees potentially affected, trade unions or elected representatives will need to be involved.
It is vital to check what is in the original documents and consult as far as possible on any potential changes to be made. Failure to do so may lead the employee in question to take legal action against the employer.
When a new contract is won it is important to assess whether TUPE comes into play.
TUPE stands for Transfer of Undertaking (Protection of Employment) and protects employment rights in the event of a business transfer or service provision change. Prior to this under common law, when a business was sold, existing contracts of employment terminated and the new employer could choose whether or not to employ any of the original staff.
If a group of employees are grouped together with the aim of pursuing an ‘economic activity’, then they form an ‘economic entity’. If that entity transfers to a new owner, so do the employees. The employees retain all their contractual rights and obligations, even where these differ from other employees already employed by the transferee.
The new employer (the ‘transferee’) acquires all the rights and liabilities associated with those employees.
Ending a contract
Ending a contract of employment represents the end of an employee’s duration with an employer. Depending on the case, the decision may be made by the employee, the employer, or mutually agreed upon by both.
In the event of the employer ending a contract, clear and agreed procedures must be followed. It is strongly recommended that advice is taken from an expert as early as possible to minimise the employer’s risk of being accused of unfair or wrongful dismissal.