Taking on Employees
| Published date | 01 July 1986 |
| Pages | 18-20 |
| DOI | https://doi.org/10.1108/eb057446 |
| Date | 01 July 1986 |
| Author | John Muir |
| Subject Matter | Economics,Information & knowledge management,Management science & operations |
Taking on
Employees
by John Muir
Industrial Relations/Personnel Consultant
Many employers would say that taking on employees is a
comparatively easy task and contrasts sharply with the
problems often associated with dismissal, be it for conduct,
capability, redundancy or some other cause. Certainly the
ending of employment can involve the employer in being
challenged under the provisions of any appropriate employ-
ment legislation or under breach of contract.
This all means time and cost for the employer if the ex-
employee complains about the manner or reason for the
dismissal.
Then there will bea look-back to consider what the
contract of employment said because ending employment
means bringing that contract to an end. In some circum-
stances, indeed in many, it will
be
crucial to examine the terms
of the contract and see in what respect there may have been
breaches leading to actual or constructive dismissal.
In the very first instance, the process for the recruitment of
staff has to be within the statutory requirements of, princi-
pally. Race Relations and Sex Discrimination legislation.
Then,
when the employer has made his choice amongst
available candidates, he offers employment. If the offer is
accepted,
a
contract of employment
is
entered into. A distinc-
tion has to be drawn between a contract for services and a
contract of service (employment).
The former applies when an individual is in business for
him-
self
—
an independent contractor
—
and enters in a contract
with another to provide services, e.g. freelance writer,
jobbing electrician. The writer and electrician may get their
work through the other party but will not, as self-employed
persons, be employees. Since they are not employees, they
will not be able to claim employment rights, for example, to
bring a complaint of unfair dismissal if no more work is
provided.
However, it is to be noted that the distinction between
employee and self-employed is not always clear-cut, and the
self-employed person in the UK may be able to establish
employee status for the purposes of employment protection
legislation.
The body hearing the complaint will look behind
theostensible relationship and examine the realities. Depend-
ing,
for example, on degree of control, freedom to accept or
refuse work, ability further to subcontract it,
a
decision will be
made whether the arrangement amounts to a contract for
services, or a contract of service (employment).
In the UK, a contract of employment does not have to be in
writing.
A job offer made across the table followed by accep-
tance — "I'll report for work on Monday" — constitutes a
legally binding agreement (except in special circumstances,
for instance, an apprenticeship, seamen on UK registered
ships,
where the contract has to be in writing). The difficulty
comes at some later stage in determining precisely what
terms are in the contract. In the first place, what was said
across the table possibly only covered basic information, like
pay, hours, holiday, overtime. As regards the overtime,
perhaps it was not made clear whether it was voluntary or
compulsory, so later a specific problem arises. The advice is
to set down the terms and conditions of an employment
contract in writing and express them clearly. There is then far
less scope for disputes about what the job is and the benefits
and obligations that go with it.
The advice is to set down the terms
and conditions of an employment
contract in writing. . .
Apart from the specific terms in the contract, there are also
implied terms, such as the employer's duty to pay for work
done,
to act reasonably and to be bound by the contract. On
the employee's side, there is the duty to co-operate, obey
reasonable instructions, act with fidelity, and so on. These
implied terms can be of the greatest importance in future
working relationships. If the employee breaks his side of the
bargain,
the employer will have disciplinary grounds for mov-
ing against him. If the employer acts unreasonably, for
example, by harassing an employee, or fails to honour
a
prime
term in the contract, for example, withdrawing use of a
company vehicle hitherto allowed for domestic purposes, the
employee may have grounds for resigning and claiming
con-
structive dismissal.
Identifying what terms and conditions there are in a contract
is still a problem, given that many employments are without
written terms. In the UK, since 1963 (the then Contracts of
Employment Act), employers have been under a duty to set
down in writing certain particulars or refer the employee to an
accessible document. Notwithstanding this and further
consolidating legislation in 1978, written documentation,
usually inthesmallercompany,
is
sparse.
The 1978 legislation
does not call for a written contract but for main terms of
employment to be set out as a statement within 13 weeks of
being employed. This statement does not itself constitute a
written contract but is strong evidence of the contractural
18 IMDS • JULY/AUGUST • 1986
To continue reading
Request your trial