If the employment has ended can some contractual terms still apply?

The inclusion of a restrictive covenant and a clause protecting confidential information in the employee’s contract allows you to prevent competition from, or the exploitation of commercially sensitive information by, an ex-employee after employment ends. In the absence of such provisions an ex-employee may enter into competition with you, solicit your customers, use confidential information and poach your staff.

However, for a restrictive covenant to be enforceable the following conditions apply:

• the employer must have a legitimate business interest to protect
• the restraint must be reasonable in time and area, and it must be no wider than necessary to protect the employer’s business

Advice should be obtained because covenants need careful drafting to ensure their validity and enforceability.

Post Termination Restrictions: A Cautionary Tale

In the recent case of Re-use Collections Limited (Reuse) v Sendall & May Glass Recycling Limited. Reuse sought to enforce a number of restrictions in a relatively new contract signed by Mr Sendall. These included a 6 month non-solicitation and non-dealing clause and a 12 month non-competition clause against their former employee, Mr Sendall, who left to work for a competing business owned and operated by his children.

Through the course of the hearing it became clear that Mr Sendall had not received any new benefits as a result of the new contract and that all employees had benefitted from a pay rise and they were not being asked to sign new contracts including new restrictions.

The court held that without any consideration for the acceptance of the new contract by Mr Sendall that the restrictions were not enforceable.

It is common ground that to enforce restrictive covenants consideration must be given.

It is important to make sure that any benefits or pay increases that are given to your employees in return for variations to their contracts to include restrictive covenants are given either conditionally on their acceptance of the variation or at the very least in the general sense linked with the introduction of the new contract. If you cannot refer to specific consideration for the contract variation you may find yourself exposed and without the protection you thought you had established.

We always advise you seek expert help on matters relating to employee contracts. Contact us on 0121 4055 101  if you need any advice.

See our other posts on Employee contracts

The post Restrictive Covenant: If the employment has ended can some contractual terms still apply? appeared first on HR101.

So, can you can you change the terms of the written contract?

If you have reserved the right to amend the terms within the contract, the answer is yes, provided you are not acting in an arbitrary or unreasonable manner.

If you have not reserved the right to amend the terms, the answer strictly speaking is no, unless it is with the employee’s agreement or consent. The outcome, however, will depend partly on how serious the change is. For example, a cut in pay rates would normally justify an employee resigning and claiming constructive dismissal – although they would probably raise a grievance first because, unreasonably failing to do so, would risk a reduction of up to 25% in any award made by the Employment Tribunal.

On the other hand, an increase in minimum paid holiday entitlement would not justify anyone resigning (although it is certainly a material change in the terms of the contract). If a change is introduced and the employees do not object, even if there is no formal agreement to the change, they may be taken to have agreed to it by carrying on working, particularly where the change has an immediate impact. But if they carry on working ‘under protest’, take advice because this can be problematic.

Whatever the circumstances, the best approach is to discuss it with them. Explain why you want to make the change, and offer incentives if necessary.

See our other posts on Employee contracts

We always advise you seek expert help on matters relating to employee contracts. Contact us on 0121 4055 101  if you need any advice.

The post Employee contracts, can you change the terms of the written contract? appeared first on HR101.

Your employees should have a written statement of terms and conditions of employment or a more detailed written contract, however is it relevant to the employee? Do all your employees have the same contract?

There are a myriad of contract variations and as the employer it’s pretty much up to you what you include, as long as it complies with current legislation. For example, you should not include a clause which is discriminatory, forces an employee to do anything illegal, or provides less than the statutory notice period or paid holiday entitlement.

You should consider very carefully what should be included, what is absolutely essential for example this may be a “Garden Leave” or short time working clause. Equally consider what should not be included. For example, you can insist on a level of behaviour by making this clear in a non-contractual “Employee Handbook” as the process of changing your non-contractual rules is more straight forward than changing an employees’ contractual terms.

You should also be aware that other documents may provide evidence of the contract – for example, the job description, correspondence, collective agreements or company policies if they are in the nature of contractual terms. It is advisable to make clear what is and is not considered to be of contractual status.

Custom and practice in your company can also become part of the contract. For example, if employees come to have ‘reasonable’ expectations of receiving a benefit, such as a bonus, an Employment Tribunal or court is likely to interpret it as a contractual entitlement.

The key to a mutually beneficial employment contract is to ensure that you retain flexibility, while establishing certainty. For example:

• Avoid producing a job description which is too detailed, and include a statement that you reserve the right to amend or add to the employee’s duties, or change their place of work, according to the needs of the business.
• Make it clear if benefits such as bonuses and health insurance are discretionary and/or can be withdrawn. Consider taking advice if you wish to offer discretionary benefits as the courts have, in several instances, decided that benefits described in documents as ‘discretionary’ are, in fact, contractual entitlements.
• Ensure that employees do not come to have a reasonable expectation of a non-contractual benefit. For example, if you always give a Christmas bonus, make it clear under what circumstances you will (or will not) pay

Read part 1 here: Do your employees have a contract of Employment?

The post The Employee Contract – Does it say what you want it to say? appeared first on HR101.

The answer is yes they do, as soon as someone accepts your job offer there is a contract between employer and employee even if you haven’t put anything in writing.

A verbal contract (particularly where the employee has already done some work in return for pay) will be equally binding – though it may be more difficult to prove what the precise terms of the contract are.

You are, however legally required to give every employee a written statement covering specified terms and conditions, within two months of the employment beginning. This should include:

• You must include: the employer’s name and the name of the employee
• the date on which the employment began
• the date on which the period of ‘continuous employment’ began (if, for example, the employee previously worked for a company acquired by you)
• pay (or how it is calculated) and when it will be paid
• information about working hours
• entitlement to holidays and holiday pay
• the employee’s job title or a brief description of their work
• the employee’s place of work
• details of disciplinary, dismissal and grievance rules and procedures

Make sure that you have written evidence of any other important contract terms too. Do not leave things to chance, or you might regret it later. If you don’t provide the terms of employment in writing an Employment Tribunal may decide the terms under which the employee is working. In addition, you may have to pay the employee compensation of 2 -4 weeks pay. 

Now read part 2: The Employee Contract – Does it say what you want it to say?

The post Do your employees have a contract of Employment? appeared first on HR101.

The post Advice for Christmas Parties appeared first on HR101.

You’ve selected your candidate, the vacancy has been filled and you’re happy with the outcome. Now all you have to do is let all the other candidates know they didn’t get the job, and why. Often this is one of the most laborious parts of the whole recruitment process and often one which gets mishandled the most.

We completely understand – with stretched resources and various demands on your time running your team and your business, keeping candidates informed of their application status is a constant task when recruiting – and employers often don’t often have the confidence or skills to give objective feedback to disappointed candidates.

Employer reluctance to give proper feedback is the main reason candidates voice their discontent with the job-seeking process. It is difficult enough for SMEs attract top talent and compete against the larger, well-known names. Yet SMEs (and larger corporates) can easily throw away any positive branding during the hiring process merely down to the way they treat unsuccessful candidates. Remember – unsuccessful candidates may also be customers, or potential customers, or related to customers or potential customers.

Here’s the top three ways employers let unsuccessful candidates down…

1. Making candidates feel forgotten: The interviews are over, yet the candidate hears nothing. They end up realising that they’ve missed out on the job simply by default- when the phone never rings.

2. Ignoring unsuccessful candidates altogether: The candidate contacts the employer to find out how the interview went, but hears nothing. The employer doesn’t contact them again for future roles.

3. Bewildering candidates with a lack of information: What went wrong? The employer informs the candidate they didn’t get the job, but gives no feedback.
At the very least you should:

1. Inform each candidate of their success or failure. If you are too time-pressed for a phone call, at least take the time to send an email.
2. Respond to each candidate request for a decision, or let them know if the decision has not yet been made (and ideally when you will be able to let them know by).
3. Provide constructive feedback for the candidates that reached final interview round. Keep the feedback behaviourally based (i.e. what they said or did) and offer one tip they can work on to improve.

Every candidate who has taken an interest in your company and taken the time to apply deserves to hear the outcome of their job application. The further a candidate progresses in the selection process, the more feedback they deserve. By informing them promptly and with all the attention you can reasonably afford to give, you will soon have a reputation as a respectful employer, thereby attracting strong candidates.

HR101 can take all the admin burden of recruiting off your hands completely. If you would like to find out more, please contact Steph on 0121 4055 101.

The post How to treat unsuccessful candidates successfully. appeared first on HR101.

Recruiting takes time. Here are three ways guaranteed to save you time and money when you next need to take on a new team member.

Plan your resourcing needs in advance.

Many organisations are caught out by ‘surprise’, staff resignations. This results in a knee-jerk reaction to reach for the recruitment agency phone number and (usually) pay overinflated fees for a short notice replacement. Often your best new recruit for the role will already be working with you. Internal promotion or secondment even for a trial period can prove a less costly way to filling the role and developing your staff. Extra staff motivation comes as an additional bonus.

Stop asking for CVs.

CVs are the least effective way to screen candidates. Recent research has revealed that nearly two-thirds (63%) of CVs contain lies. CVs take ages to read and are at best just a list of skills. Other research has revealed that third of people embellish or exaggerate their academic qualifications when applying for jobs. A more robust solutions is to use an online process where candidates complete a set (no more than three) simple competency (or experience) based application form.
Remember to keep it short, and ask questions that are pertinent to the skills and behaviours you need for success in the role. Motivated candidates will tend to give you a full answer, time wasters and inappropriate candidates will not bother to complete the questions and self-select out of the process – saving you that job.

Use some employee profiling questionnaires.

Conservative estimates put the cost of recruiting the wrong employee at 200% of salary. The best (i.e. the most robust and objective) way to get behind the CV and interview is to invest in some robust personality profiling. Don’t miss a trick and think this is a cost. Smart businesses know this is an investment. You’re investing resources into getting the most robust and objective information about a candidate. Robust information about a candidate enables you to make more robust selection decisions. The cost of a personality test for the final candidates is minuscule when compared to the costs (financial and otherwise) of finding out you got it wrong – and after the employee has already started working for you.

• About
• Latest Posts

Diane Pagett

Latest posts by Diane Pagett (see all)

• Restrictive Covenant: If the employment has ended can some contractual terms still apply? - February 18, 2016
• Employee contracts, can you change the terms of the written contract? - February 11, 2016
• The Employee Contract – Does it say what you want it to say? - February 1, 2016

The post 3 ways guaranteed to save you time and money when you recruit appeared first on HR101.

Starting a new job can be bewildering for new employees… and can bring it’s own set of challenges for employers too. So here’s something we thought might help you to get your new starter ‘hit the ground running’

Send a welcome note to new employees before they start. Let them know what time they are expected to arrive on day one and tell them about parking arrangements and other day to day stuff like arrangements for food and drinks.

Include an agenda for the day so they know exactly what to expect. Provide vital information needed for the new recruit to be able to work effectively as quickly as possible.

Make sure that everyone knows about your new employee – Anybody who will be working closely with or managing your new team member should be available to meet on the first day or or at during the first week.

Ensure that all facilities are available on their first day:  Everything from technology, access keys or cards, any other equipment and consumables such as stationary, business cards etc.

Keep it interesting; one of the biggest complaints is that the induction process is boring! Give your new started a ‘road map’ but let them choose the order in which they discover things and meet people where possible. We really like new started quizzes –  where new team members have to find the information from other team members rather than being spoon fed it by their line manager.

Introduce your new employee to co-workers in a measured way. Think carefully about who  they NEED to meet on day one and who is less vital and can wait until it’s more appropriate. Doing it this way ensures your team member doesn’t feel overwhelmed or intimidated.

Have a plan written down to share with your new employee so that they are clear what will happen throughout the induction process. And also share this with other key team members who are part of the induction process.

Keep an open door and make time for a coffee and a chat at least once a week for the first 12 weeks. Ask for feedback from recent hires. Find out how they perceived the induction process and make changes based on those recommendations.

The post 8 Ways to make employee induction effective appeared first on HR101.

Good Job Descriptions are essential. They tell the recruiter, the job holder and their manager exactly what the purpose of the role is, the responsibilities and outcomes and how these will be measured.

Here are 7 things you must include:

1. Role Summary.

This should be an accurate, concise and detailed statement of why the job exists. It should summarise the overall role of the job from the organisation’s point of view. One sentence should be adequate for this.

2. Role Responsibilities

This section should identify what needs to be done and why, (NOT how). They should be written in the form: What is to be done, to what and with what outcome. Be precise and realistic (If you have more than 8 you probably have too many)

3. Success Measures.

This is how the organisation will know how well the responsibilities have been undertaken. For example the success measure for a customer services manager could be the number of customer contacts to resolve an issue. You do not have to have a success measure for each responsibility. One success measure may relate to a number of responsibilities, (don’t include numerical targets as these can and should change)

4. Behaviours and ATTITUDES.

Think about what type of person would be best suited to this role. For example someone who works in a very structured way, following detailed instructions and procedures may excel in a quality control role but may not be well suited to a more unstructured role in which they must use there initiative to solve multiple and varied problems. Think about who your top performers are in this role and the personal qualities they possess which may help them to be super successful in the role. (Look for some more like this!)

5. Skills Knowledge, Experience and Qualifications.

Ensure that these are genuine requirements. For example if the requirement is time bound, you require the job holder to have 5 years’ experience, make sure that this is objectively justified. (What can someone with 5 years’ experience do that someone with 4 years could not?) Research has shown that previous experience has no bearing on success in future roles.

6. Training.

Identify any training on in house systems, processes, and policies or requirement for continued professional development etc.

7. Context.

Provide additional information about the role, for example a requirement to travel overseas, shift pattern or geographical area covered by the role, key relationships or partners. (You should also provide an organisational chart.)

If you’re a business owner in the West Midlands, come and join us at our FREE Bitesize HR for Small Business workshops during October and November.

The post Essential elements of a great Job Description appeared first on HR101.

Taking on your first employee can be a big event for a small business. Usually business owners cover off the essentials pretty well (standard terms & conditions, disciplinary policy and process, sickness absence policy, right to work etc). However what tends to get missed are all the other essentials that will help you select the RIGHT person for your business.

A realistic job description.

What’s a REALISTIC Job description? I hear you say – find out more here.

Pre-defined, selection criteria

Which elements or the job description and person specification are a must have? Try to differentiate in advance what ‘good’, and ‘poor’ looks like for you BEFORE you interview.  Do this by setting some clear behavioural criteria. E.g. if you need someone who is prepared to be flexible and adapts easily  then a ‘good candidate will show you where they have changed their approach or style given changing circumstances, whereas a ‘poor’ candidate will have stuck rigidly to the same approach even when it appears ineffective.

A clearly mapped out recruitment process

This is important so that everyone knows who is doing what, why, when and how. The easiest way to lose a great candidate is a slow and vague process. Who is going to make the final decision? When are you going to let candidates know the outcome? Who are going to ask the questions? and take notes? A muddled process also doesn’t create a great first impression for your candidates.

Trained interviewers

This is to ensure fairness and consistency in the selection process. It’s also important as you need to know how to extract the right information from candidates. Candidates can go off at tangents and can be adept at creating a great impression but with little substance when you analyse what they actually say. There are lots of interview traps – and they are very easy to fall into without the right training.

The right package

A good employee proposition is not just about salary, think about other benefits that may be relevant for the type of person you need for the role. It may be flexibility, training, a clear career path or the authority to make decisions.

A great induction plan.

It’s no good getting the right employee in and carrying out a polished selection process only to let the whole thing down with an anticlimax of a first day filled with vagueness and uncertainty. The good news is, it’s very easy to prevent this from happening.

The post 6 Essentials to have in place before you recruit someone. appeared first on HR101.