Reply to: contract clauses...

[AlfredJPruffock]

I know I'm just a mere permie but I've jsut received my employment contract and wondered what you guys thought of this clause:

they are saying I can be terminated WITHOUT NOTICE for failure to perform duties, become a patient under the mental health act, or you become insolvent

surely the first is wrong because there has to be a disciplinary procedure, which they don't mention

the 2nd seems bizarre, i've never seen this before. Obviously I don't expect to be sectioned any time soon, but surely you would be protected from being sacked if you were to be? Wouldn't you be just eligible for statutory sick pay? it's only an illness after all surely?

as for the 2nd... talk about kicking you whilst you're down! the one time you need money and they sack you!

what are your thoughts guys?

Watch out for the Catch 22 ; ie you must be crazy to accept this job offer therefore we can sack you under the mental health act then liquidate your assets etc

Its a jungle out there Janey:

Dont go ; stay in bed.

[privateeye]

The DTI are wrong PrivateEye is right so there

The moment an applicant unconditionally accepts your offer of a job, a contract of employment comes into existence. The terms of the contract can be oral, written, implied or a mixture of all three.

Even if you do not issue a written contract, you are under a legal duty to provide most employees with a written statement of main employment particulars within two months of the start of their employment with you. The written statement is not itself the contract but it can provide evidence of the terms and conditions of employment between you and the employee if there is a dispute later on.

What this means is you already have a contract of employment albeit not signed. The 2 months means it must be a written contract.

Taken from Business Link

*privateeye in smug - I know better than the DTI but who doesn't mode*

[janey]

New job going smoothly, then?

does it ever?!

[Xenophon]

just been on the DTI web site and this is wha tI've found out:

the employer has to give you an employment contract within 2 months of starting work

the contract MUST contain "a note giving certain details of the employer's disciplinary and grievance procedures, and stating whether or not a pensions contracting-out certificate is in force for the employment in question".. I hasten to add that my contract doesn't not say anything at all about disciplinary procedures. The only thing it says is that they may suspend me from my duties on full pay to allow them to investigate any complaint made against me.

New job going smoothly, then?

[janey]

Fyi

just been on the DTI web site and this is wha tI've found out:

the employer has to give you an employment contract within 2 months of starting work

the contract MUST contain "a note giving certain details of the employer's disciplinary and grievance procedures, and stating whether or not a pensions contracting-out certificate is in force for the employment in question".. I hasten to add that my contract doesn't not say anything at all about disciplinary procedures. The only thing it says is that they may suspend me from my duties on full pay to allow them to investigate any complaint made against me.

[Spartacus]

thanks guys, appreciate all the advice.

just dont want to end up being sacked should I happen to miss a deadline or I get sent to the looney bin!

No janey, you do want to get sacked, just not in the first year. Think of all the lovely compo money. If you happen to be pregnant at the time... ding-ding, JACKPOT!

[janey]

thanks guys, appreciate all the advice.

just dont want to end up being sacked should I happen to miss a deadline or I get sent to the looney bin!

[Spartacus]

i dont' really have much choice but to sign it to be honest... otherwise i'm out of a job!

Precisely, you are signing the contract under duress, so it would be almost impossible for it to stand up in court. How you would present it to a tribunal would be that they lured you in without a written contract but an oral assurance that everything you be okay. You relocated, started work and all the rest of it and then were presented with a wacky contract full of bizarre clauses and you were told to sign or be sacked.

I'm sure it won't come to that, but best to be safe than sorry. As others have said, keep the original communications and be sure to sign the contract dated today, not before.

[ASB]

hmm didn't know that. why is it dodgy ground? what are the consequences?

i dont' really have much choice but to sign it to be honest... otherwise i'm out of a job!

You may be in a stronger position than you think. If you do not have a written contract (and you don't, you started before you got it) then there is a default set of T&C's. Also they can't actually force you to agree new terms. If you don't like the contract (and it looks absolutely dire) give ACAS a call.

[janey]

They have to have the employment contract to you before you start otherwise they not you are on dodgy ground if ever it did come to dismissal - date it the day you sign it not before if you do decide to sign.

hmm didn't know that. why is it dodgy ground? what are the consequences?

i dont' really have much choice but to sign it to be honest... otherwise i'm out of a job!

[privateeye]

I did have something to sign before I joined the company as an "acceptance" type thing and they said the employment contract would be given to me on my first day.

They have to have the employment contract to you before you start otherwise they not you are on dodgy ground if ever it did come to dismissal - date it the day you sign it not before if you do decide to sign.

[bogeyman]

Seems normal to me.

Naturally, as you...

1) fail to perform duties

2) are a patient under the mental health act

3) are insolvent

[janey]

Worth checking but I don't think those clauses would be upheld in a court even if you signed them as they would be overriden by English and Welsh Law - a lot of clauses in contracts are just not enforceable. <snip>
Every company has to fall into line with proper disciplinary procedures there is no way out for them. With a contract like that it would be quite easy for you to win a "Constructive Dismissal" case as you are always under threat of being sacked and you have it on paper.

see that's what I thought.
there is no mention at all about disciplinary procedures.

there's also the usual "can't go work for one of our competitors for 6 months" clause which I know has been mentioned before as unenforceable.

Yup, only just received the contract, and only after I pestered them for it. The HR manager s off on holiday this week and she forgot to give it to me before she left. I did have something to sign before I joined the company as an "acceptance" type thing and they said the employment contract would be given to me on my first day.

I find the mental helth thing baffling too... like I said before, surely that would just come under "sickness" and you could claim SSP?

[privateeye]

Worth checking but I don't think those clauses would be upheld in a court even if you signed them as they would be overriden by English and Welsh Law - a lot of clauses in contracts are just not enforceable. Secondly why have you only just received the contract, are they trying to change the conditions of your employment after you have arrived? If you do sign the contract make sure it is dated when you signed it not before and keep all documentation you received prior to acceptance. If the worse comes to the worse then you can claim having to sign the contract under duress that you would lose your job if you didn't sign.

Every company has to fall into line with proper disciplinary procedures there is no way out for them. With a contract like that it would be quite easy for you to win a "Constructive Dismissal" case as you are always under threat of being sacked and you have it on paper.

[DimPrawn]

I thought that a perm contract must have equal notice periods.

So if you contract says they can terminate without notice, you legally can walk out without notice.

however, IANAL (I am not a liar)