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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48736
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there, I started a new full-time job a couple of months

Resolved Question:

Hi there, I started a new full-time job a couple of months ago; recently I was given a contract to sign. Having read through the paperwork I am somewhat reluctant to sign it as is, there are few points that are not agreeable to me. I was wondering whether I have any grounds to be negotiating the terms that I am not comfortable with or should I just make a decision whether to accept the contract or seek alternative employment.
I will provide more information as soon as someones agrees to answer my query.
Many thanks in advance for your help.
Best - Art
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What parts do you disagree with?
Customer:

Hi Ben, thanks for responding...

Customer:

here are the main points:

Customer:

  1. Job title and duties



  • You are employed as Pattern Cutter or such other role as the Company considers appropriate.

  • You will carry out such duties as may be required of you from time to time. Your principal duties and responsibilities are anticipated to be those listed on the job description attached to the Staff Manual.

  • However, this list is for general guidance only, is not contractual or exhaustive, and may be amended (by addition, deletion or substitution) by the Company from time to time.


I AM UNCOMFORTABLE WITH THIS.
I AM A WELL EDUCATED AND VERY EXPERIENCED PROFESSIONAL AND I DO NOT THINK I SHOULD BE EVER EXPECTED TO PERFORM TASKS THAT ARE NOT IN MY JOB DESCRIPTION.



  1. Rules, policies and procedures.



  • You must at all times comply with the Company' s rules , policies and procedures in force from time to time (including but not limited to those set out in the Staff Manual).

  • For the avoidance of doubt, such rules, policies and procedures do not form part of your contract of employment (unless stated specifically otherwise) and may be amended, replaced or withdrawn at any time at the discretion of the Company.

  • You must keep yourself informed of any such changes. Breach of any Company rules, policies or procedures may result in disciplinary action including in serious cases summary dismissal. To the extent that there is any conflict between the terms of this agreement and the Staff Manual, this agreement shall prevail.


I AM NOT COMFORTABLE WITH THIS.
FOR EXAMPLE: CURRENTLY THE COMPANY IS PROVIDING TAXI HOME TO ANYONE WORKING PAST 11PM AND DINNER TO ANYONE WORKING PAST 9PM. ALTHOUGH A RULE, IT IS NOT IN THE CONTRACT; WOULD IT BE FAIR FOR THINGS LIKE THAT TO BE WITHDRAWN AT THE DISCRETION OF THE COMPANY?



  1. Hours of work and overtime.



  • Your normal hours of work are 9. 00 am to 6. 00 pm, 5 days per week (Monday to Friday inclusive), with a 1 hour lunch break. You are expected to be ready to work promptly at 9. 00 am.

  • You must take your lunch break between 1 pm and 2 pm (unless your duties require otherwise or the Company directs you otherwise), and you must eat your lunch during this break. You may not consume alcohol within working hours or during your lunch break.

  • Your normal hours of work are a guideline only. You will be required to work such hours as may be necessary for the proper performance of your duties (including but not limited to, where necessary, evenings , weekends and public holidays) and the Company may vary normal working hours (including but not limited to daily start and finish times) to meet its business requirements.

  • You acknowledge that you shall not receive further remuneration in respect of such additional hours and that you are not eligible to receive overtime payments.

  • The European Working Time Directive sets a maximum working week of 48 hours. The Company may from time to time need you to work a working week longer than 48 hours. By signing this agreement, you agree to waive your rights under the Working Time Regulations, 1998 not to work on average in excess of 48 hours per week averaged over a period of 17 weeks. This arrangement shall continue until it is terminated by you on giving the Company not less than three months written notice of your intention to do so.


 


I AM NOT COMFORTABLE WITH THIS.
WORKING HOURS ARE WORKING HOURS. 9 TO 6 AS OUTLINED ABOVE.
I DO UNDERSTAND THE NEED FOR EXTRA TIME TO BE PUT IN OCCASIONALLY, TO SATISFY THE COMPANY’S NEEDS, THAT IS REALITY OF OUR LIFE. HOWEVER, I STRUGGLE TO ACCEPT THE CONTRACTUAL OBLIGATION TO WORK OVERTIME AT THE COMPANY’S DISCRETION, WITHOUT ANY COMPANSATION.
I DO PUT IN EXTRA TIME ON A REGULAR BASIS ANYWAY, BUT I’D LIKE TO THINK THAT I DO SO ON MY OWN TIME AND I CONTROL THIS, NOT THE COMPANY. I THINK IT IS FAIR FOR ME TO EXPECT TO BE ASKED TO STAY AFTER HOURS, NOT JUST TO BE TOLD TO DO SO.
ALSO, I AM AWARE THAT SOME EMPLOYEES HAVE AGREEMENTS IN THEIR CONTRACTS OUTLINING HOW MUCH OVERTIME THEY ARE EXPECTED TO BE PUTTING IN FOR FREE AND SHOULD THEY BE REQUIRED TO WORK MORE, WHAT IS THE COMPENSATION.


 



  1. Short time working and Lay-off



  • Although unlikely, there may be occasions where the Company is unable to provide all employees with work. This may be due to the commercial situation of the business or may be caused by events outside of the Company’s control. The Company therefore reserves the right to put you on short-time working or to lay you off work, which may require you not to attend work or to work shorter hours. The Company would only consider implementing short-time working in exceptional and serious circumstances.

  • During any such period you will not be paid your normal salary. You will be paid either your normal rate for the hours that are actually worked (short-time working) or a guaranteed payment (Lay-off) according to current statutory regulations.



I AM NOT COMFORTABLE WITH THIS.
AS A FULL TIME EMPLOYEE I KNOW I AM EXPECTED TO FULLY COMMIT TO THE COMPANY AND, IT IS QUITE CLEAR THAT THE COMPANY IS EXPECTING A LOT FROM THEIR EMPLOEES. IN RETURN I WOULD EXPECT COMPANY’S FULL COMMITMENT TO ME AS WELL. I RELY ON MY SALARY AND I NEED TO KNOW THAT IT IS IN MY ACCOUNT EVERY MONTH.



IN MY OPINION, THIS IS WHAT SEPARATES FULL TIME JOB AND FREELANCE AGREEMENTS.


AS A FREELANCER I WOULD CHARGE FOR EVERY HOUR I AM WORKING, IN RETURN I WOULD NOT HAVE GUARANTEES THAT SUPPOSEDLY COME WITH FULL TIME EMPLOYMENT?

Ben Jones : Can I review that and get back to you later today with a full response?
Customer:

I hope this is easy to understand, my thoughts are in CAPS.

Customer:

yes, sure, I will wait for your thoughs.

Ben Jones : Thanks
Ben Jones :

Many thanks for your patience. Your rights to try and negotiate over your contract will be somewhat limited. That is because you do not have much bargaining power due to being a relatively new employee. The biggest let-downs to your rights is your length of service – until you have at least 2 years’ service with the employer you are not protected against unfair dismissal. This means the employer can legally terminate your employment for more or less any reason as long as it is not linked to discriminatory reasons and you are paid your notice period. So they could decide to dismiss you if they see you as being a difficult employee over your reluctance to accept the contract as it stands.


 


The terms you are concerned about re not really unlawful in any way – they may not be favourable to you, but if they are included in the contract they can be applied, as long as overall the employer acts reasonable. Even if they do not, you will again be limited as to what you can do in respect of this in the first 2 years of employment simply because you cannot make a claim for being dismissed or forced to leave as a result of this.


 


For example, working additional hours – the employer is not expected to pay you for working overtime, although they still need to adhere to the average of 48 hours of work a week. So even though you are employed to work set hors you could be asked to work additional hours for no extra pay – his is nothing new. For example solicitors work under such arrangements, they will have fixed hours but work many additional hours on top of that for no pay, if the business requires it.


 


Also with short-time working – this is entirely legal as long as it is provided for in the contract. There are rules that allow you to eventually ask to be made redundant if you are placed on short time working or paid off for a specific period of time but you won’t be entitled to receive a redundancy payment until you have at least 2 years’ redundancy.


 


So this is your position really, not that strong to negotiate unfortunately. You are free to challenge as many terms as you wish, but at the same time the employer could easily just give you notice of termination and legally dismiss you without you having any comeback. It is up to you to decide how important these terms are and whether trying to remove them take precedence over risking your job.


 


Hope this clarifies your position?

Customer:

Hi Ben, thanks for your response. I guess, I sort-off knew that the contract is not illegal. I also knew that they can dismiss an employee easily until they have worked for the company for 2 years. It's just that have never seen an employment contract that is, in my view, so unfavourable to the employee. I do realise that by negotiating the terms of the contract I may be deemed to be difficult, but it's a two way street and it would be a choice for them to make as well, whether they want me to be working for the company?If I am employed as a pattern cutter, that is it, and I should not be expected to sew buttons for example, as this would be a seamstresses job?

Customer:

same in regards ***** ***** working hours, I know there are going to be overtime, but I just do not want to be my contractual obligation; I do not want them to think that it is within their right to MAKE me work till 11pm; honestly, if there is a need for an employee to work such hours on a permanent basis, it's either they can not do their job, or the company needs to employ additional staff?

Customer:

I like the way you phrased re the short time working - 'this is entirely legal as long as it is provided for in the contract'. I can only assume that I can ask for this to be removed?

Customer:

They also refer to 'Staff Manual' which i have never seen and this adds to my reluctancy to sign the contract.

Customer:

I guess my question now is - do you, in your professional opinion, view these terms as absolutely standard? You word it as 'they may not be favourable to you, but if they are included in the contract they can be applied, as long as overall the employer acts reasonable'.

Customer:

Do I have a reason to be questioning these terms at all?

Customer:

as I mentioned before I am not too worried about losing the job at this point, it is a two way street, it's a small, quite new company; they have to want me to work for them as much as me. If that's not the case, I would possibly be better off to be moving jobs now rather in a 2 years time when it's too much?

Customer:

So, to summarise, the contract is not illegal, but do I have a right to ask for the company to customise it for my purpose? I mean I do understand the risk involved...

Ben Jones :

Hi, the terms are not absolutely standard but are optional for the employer to include if they want to - they are the employer and they can decide how they want to employ their workers and under what terms - they do not have to offer you a job and at the same time you do not have t take it. If they offer you one they can stipulate the terms under which they want to offer it and it is then for yo to decide if that is the job you want to take - if you can't agree on the terms then you will have to consider if it is the right job for you or not. You have the right to question the terms but it is up to you how much you challenge them and how far you are willing to go in that respect. You can always have a 'friend;y' chat with them to discuss them and try to come to an agreement, but as mentioned you could eventually find yourself at loggerheads and you need to decide what is more important - the job as it is, or changing the terms and risking losing it. Also having all these terms in there does not mean theyb

Ben Jones :

they will apply them consistently all the time - they are there to offer them flexibility if needed, it does not mean you will find yourself working overtime on a daily basis for example

Customer:

Ok, thanks, ***** ***** I got my answer...

Customer:

have a good weekend!

Ben Jones :

you are most welcome, all the best

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