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  • Frequently Asked Employment Questions - How do we deal with "dissenters"?
    If, despite your best efforts at consultation, an employee refuses to agree to contractual changes, there is little else you can do other than to either drop your proposed changes or terminate their contract on due notice. With the latter option, you should also offer to re-employ them on the proposed new terms and conditions. Do this by writing to them, setting out the business reasons that have caused the change(s) and give them notice that you're terminating their existing contract. The letter should also...
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  • Frequently Asked Employment Questions - Can we prevent staff having a second job?
    You can contractually require employees to seek your prior consent to second jobs, although it's difficult to prevent an employee from taking on a second job if they don't declare it and your suspicions aren't otherwise raised. But an employee with a second job could cause you problems, e.g. due to tiredness and declining productivity, which could have serious safety implications for you. Plus, a second job working for a competitor might seriously harm your business interests. So protect your business by restricting...
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  • Frequently Asked Employment Questions - What do we need to consider when drafting post-employment restrictions?
    Start by considering exactly what it is that needs to be protected, e.g. customer lists or marketing strategies. Next, think about which employees have access to this material. It's only relevant staff that should be subject to post-employment restrictions, such as the non-solicitation of customers or non-dealing with customers in respect of whom they had personal dealings during the final stages of their employment.  Depending on the nature of your business (or the sector within which you operate) you may...
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  • Frequently Asked Employment Questions - Why should we consider having mobility clauses?
    A well drafted mobility clause gives you the right to insist that an employee relocates to another business location, either within a few miles or much further away. However, the terms must be reasonable and your clause must be clear, unambiguous and drafted no wider than is necessary. For example, you should set out the notice period that will apply if you ever want to enforce it. This should be a couple of months at least, maybe more, particularly if the relocation is to be permanent and will involve the employee...
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  • Frequently Asked Employment Questions - How do we revoke a flexible working arrangement?
    Although the rights to request and reject a flexible working arrangement are set out in the Employment Rights Act 1996, it makes no provision regarding the revocation of an arrangement. So if you want to do this it will be a contractual matter. You'll need sound business reasons why: (1) you need to revoke the terms; (2) it affects this particular employee; and (3) there's no other solution, such as reallocating duties. Once you have this information, meet with the employee to explain the situation and seek...
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  • Frequently Asked Employment Questions - How do we know if our consultation process is sufficient?
    Consultation is a two-way process, so be prepared to invest at least several weeks in it. However, its precise duration will depend on numerous factors including: (1) the type of contractual changes you wish to make; (2) their complexity; (3) employee reaction to them; and (4) whether or not you recognise trade unions or a formal consultative body under the Information and Consultation of Employees Regulations (ICE). To be sufficient, the consultation needs to be a genuine attempt on your part to have a meaningful...
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  • Frequently Asked Employment Questions - Can we exclude all liability for any loss, theft or damage to an employee's personal property?
    The Unfair Contract Terms Act 1977 doesn't ban the use of such clauses, or make them illegal. However, it does allow the courts to render them void and unenforceable if they fail to satisfy the requirement of reasonableness. So you could use this type of exclusion clause if you wanted to - just be prepared for it to be totally ineffective if an employee ever challenges it! That said, many employers do use this type of exclusion clause, or notice, in the hope that the employee is unaware of their legal rights...
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  • Frequently Asked Employment Questions - How do we avoid contracts changing through "custom and practice"?
    It takes more than a single incident to establish a contractual right through "custom and practice". For a custom or practice to take on contractual force, it must be "reasonable, notorious and certain", which means it must have been endured for a lengthy period and have been generally recognised amongst your employees. If you don't want any custom or practice to ever gain contractual status, vary it from year to year and when doing so remind employees it is purely informal. Also, make sure your express terms...
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  • Frequently Asked Employment Questions - If the employment contract allows us to make a particular change, do we still have to consult with the employee before we implement it?
    Yes. Even where you have a valid flexibility clause in the employment contract allowing you to unilaterally change a particular term, you must act reasonably in doing so and in a way that does not breach the implied term of mutual trust and confidence. This will include consulting with the employee. Tip. Consult with the employee about the nature and scope of any change, the reason it's required and the proposed timing of the change. Take the employee's views into account and attempt to resolve any issues...
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  • Frequently Asked Employment Questions - How do we go about changing our salary structure?
    This should be done through a consultation process. But whilst it should be easy to convince staff to agree to an increase, you'll struggle if they think that the overall effect will be a reduction in pay. So be realistic about what your workforce is likely to accept and produce some worked examples to show how any arrangement will work in practice.  If this doesn't convince them you could offer an incentive, e.g. additional annual leave. Tip. If any employees refuse, you may be able to give them notice to...
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