Pothecary Witham Weld Solicitors

1. Recruitment
   a. Duty to advertise job vacancies?
   b. Withdrawal of a job offer once accepted?
2. Contracts of employment and written statement of particulars
3. Changes to terms of employment
4. Age discrimination update
5. Post-termination restrictive covenants
6. Summary of qualifying periods for employment rights

The general rule under English law is that, save in specified situations such as cases which involve the possibility of sex, race, disability or trade union related discrimination, an employer can lawfully refuse to employ a job applicant for any reason whatever.

There is no general duty on an employer to advertise job vacancies. The Employment Appeal Tribunal has ruled that neither the sex nor the race discrimination legislation impose a specific duty to advertise a position, although a failure to advertise might be taken into account in appropriate cases ICR 507, EAT).

It is unlawful to advertise a job vacancy in a way which indicates the job is only available to members of one of the sexes unless the job can lawfully be offered to members of one sex only or in a way which indicates that colour, race, nationality or ethnic origins will be determining factors unless the circumstance are such that it is lawful for colour, race etc to be used as determining factors for filling the vacancy. There are also advertising rules in relation to Disability Discrimination but in contrast to the equivalent sex and race discriminatory advertisement rules these allow positive discrimination in job advertisements.

Employers should be careful in requiring job-applicants to complete applications in hand-writing as this could amount to discrimination against some disabled people and should make it clear that other forms of application will be acceptable.

An employment contract has the same legal implications as any other contract. Once an unconditional contract has been agreed it is binding on both parties and any failure to fulfill its terms by either party will be a breach of contract giving the other party the right to sue for any resulting loss.

A contract of employment exists as soon as an employee starts work. Starting work proves that they accept the terms and conditions offered by the employer. Both employer and employee are bound by the terms offered and accepted. Often the contract is verbally agreed and not written down.

Employees are however entitled by law to be given a written statement setting out the "main particulars" of their employment within two months of their start date.

The statement should contain:-

• the names of the employer and employee,
• the date when the employment began, and
• the date on which the employee's period of continuous employment began

  The statement should also contain particulars, as at a specified date not more than seven days before the statement (or the installment containing them) is given, of:

• the scale or rate of remuneration or the method of calculating remuneration,
• the intervals at which remuneration is paid (that is, weekly, monthly or other specified intervals),
• any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),
• any terms and conditions relating to any of the following:
  • entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),
  • incapacity for work due to sickness or injury, including any provision for sick pay, and
  • pensions and pension schemes,
• the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment,
• the title of the job which the employee is employed to do or a brief description of the work for which he is employed,
• where the employment is not intended to be permanent, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end,
• either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer,
• any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made, and
• where the employee is required to work outside the United Kingdom for a period of more than one month-
  • the period for which he is to work outside the United Kingdom,
  • the currency in which remuneration is to be paid while he is working outside the United Kingdom,
  • any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside the United Kingdom, and
  • any terms and conditions relating to his return to the United Kingdom.

Negative changes in existing terms of employment are usually made in one of three ways:-

• by agreement with the employee(s), possibly with a cash "sweetener";
• by unilateral variation of contract terms (or of works rules applied by the contracts); or
• by giving required notice to terminate existing contracts and offering new contracts on new terms.

  Choices open to an employee are:-

• to go along with the employer's proposals;
• to reject them and quit, perhaps claiming constructive dismissal , or
• to reject them but continue to work on a without prejudice basis (ie "under protest") on the new terms, reserving all rights, negotiating if possible and ultimately bringing court or Tribunal proceedings if agreement cannot be reached.

  Changes should be discussed with employees in advance. Failure to do so will normally be unreasonable and be held against the employer in any court or Tribunal proceedings.

  The basic rule is that a unilateral change to terms and conditions of employment made by an employer without agreement of the employee is generally a breach of contract. In serious cases this can give the employee the right to resign and claim constructive dismissal. The civil courts will have jurisdiction as well as (or instead of) an employment tribunal and the civil courts have greater powers than tribunals to award compensation in breach of contract cases.

  Even a clause agreed by an employee giving the employer the right to make unilateral changes to contract terms or works rules will not give the employer a total freedom and an employee may still be able to claim constructive dismissal if the employer makes significant changes. Employers should take expert legal advice.

  Changes in terms of employment must be notified to employees within one month, or sometimes sooner if overseas work is involved. Employees should be made fully aware of, and accept, any detrimental changes to their terms of employment if the changes are to be legally binding. Acceptance can be inferred by the employee's conduct. (eg continuing to work without objecting to the change. A variation will not be binding if there is no consideration).

  If an employee does not accept the changes then provided they were reasonable changes his refusal to accept them might amount to "some other substantial reason" which if sufficiently important could be a potentially fair reason for dismissing the employee.

Generally, restrictive covenants are clearly in restraint of trade and so are contrary to public policy. This principle conflicts with another that contracts freely entered into should be enforced.

The courts resolve the resulting conflict of public policy principles by enforcing restrictive covenants after employment has ended only if they go no further than is reasonably required to protect the legitimate business interests (including goodwill, customer lists and trade secrets) of the employer.

Restrictive covenant clauses should usually be drafted so that each part can be construed independently of any other parts and this should be expressed to be the intention of the parties. It is also important that restrictive covenants should be "tailormade" to suit the individual circumstances of the particular individual.

There is a general rule that where an employer has behaved so badly towards his employee that the employee can treat his employment contract as at an end then, because the contract has been ended by his own fault, the employer cannot usually enforce any post-termination restrictive covenants it may have contained.

The following statutory employment rights are subject to completion of the following qualifying periods of continuous employment:

• Unfair dismissal - normally one year but this is reduced to none in certain cases,  notably cases in which dismissal is automatically unfair.
• Sex, Race and Disability discrimination - none
• Written statement of reasons for dismissal - one year
• Redundancy pay - two years.
• Time off to look for other work or for training if under notice for redundancy - two years.
• Written statement of employment terms - one month.
• Written statement of changes in terms - one month.
• Itemised pay statements - none
• Pay if suspended on certain medical grounds - one month
• Statutory Sick Pay - none
• Time off for public duties - none
• Not to be unjustifiable disciplined by a Trade Union - none
• Not to be refused employment because of TU membership or non-membership or be victimised because of TU membership, non-membership or activities - none
• Time off for TU officials for TU duties - none
• Time off for TU activities - none
• Right to job back after ''old style'' maternity leave - two years
• Right to ''new style'' maternity leave - none
• Statutory Maternity Pay - 26 weeks
• Time off for ante-natal care - none
• DSS redundancy pay on employer's insolvency - two years
• DSS holiday etc pay on employer's insolvency - none