Whether you realise it or not, all your employees have an employment contract with you as their employer. It might not be in writing, but a contract was automatically created when they started to work for you.
An employment contract, or ‘contract of employment’, is an agreement between an employer and an employee which sets out the employment rights, responsibilities and duties. These are called the ‘terms' or 'terms & conditions' of the contract.
As stated above, the employment contract doesn’t have to be in writing. However, every employee is entitled on request to a written statement of their main employment terms within two months of starting work.
The employment contract is made as soon as they accept a job offer from you. If they start work it will show that they accepted the job on the terms offered by you as the employer, even if they don’t know what they are! .
You and your employee are bound to the employment contract until it ends (usually by giving notice) or until the terms are changed (usually in an agreement between you and your employees).
Contract terms can come from a number of different sources; for example they could be:
- verbally agreed
- in a written contract, or similar document
- in an employee handbook or on a company notice board
- in an offer letter from you to the employee
- required by law, for example, employees must now be paid at least the minimum wage
- implied terms, which means that 'custom and practice' over a number of years is followed
If either you or your employee breaks a term of the contract, the other is entitled to sue for breach of contract. However, if you don't have written terms and conditions it is increasingly difficult to prove what you say is right and the Employmnet Tribunals (and the Traffic Commissioners) do not look favourably on operators/employers who do not have their terms and conditions of employmnet written out and readily accessible.
The recent additional bank holiday (see previous news item) has led to several disputes and unneccesary arguments between employees and their employers, simply because either no written terms were available, or the ones that were had been written in an ambiguous way.
As an employer you have the right to control when your employees take their annual leave, although it is important that you clearly make all your employees aware of this when they begin to work for you. Although it is not yet a legal requirement that every employee be provided with written terms and conditions of employment it is in your interests to invest in producing detailed and very specific terms and conditions of employment if you want to avoid any problems regarding misunderstanding or disciplinary issues in the future.
What's more, if you have an authorised goods vehicle operators licence the Traffic Commissioner that granted it will expect you to have clear disciplinary procedures in place that you can use if your drivers' fail to comply with the obligations of the 'O' licence. These procedures must be explained to your drivers when they start working for you and the best way to do this is to include them in terms and conditions of employment.
The days when it was better to write down as little as possible regarding what drivers should and shouldn't do are long gone. In this world there is a 'blame culture' that lives on 'passing the buck' when it comes to problems. The operator that cannot provide clear written and auditable evidence of following the rules will be the one that ends up being the one that is blamed!
Although you might not consider terms and conditions of employment as a way of protecting your 'O' licence they are vitally important as one of the many tools you need to have in place to stay safe and compliant.
If, as an employer, you provide only the legal minimum required annual leave your employees do not have a right to carry leave over from one year to the next and as an employer you cannot permit this to happen.
If you provide annual leave over and above the minimum legal requirment - presently 5.6 weeks / 28 days for someone who works an average five day working week throught the year - then you can allow that additional time to be taken over....but every employee must be forced to take the minimum legal requirement.