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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6464
Experience:  15 years experience of advising on employment law matters
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I have taken over a business, and two staff members have no

Customer Question

I have taken over a business, and two staff members have no written employment contracts. They refused to sign the previous owners contract as it was a zero hour format. I would like them to sign an updated contract but still with a zero hour clause, but they refuse. They have both been working around 20 hours a week, one for a year, the other for three years.
Can I insist that they sign - everyone by law should have a contract. Alternatively would an employment Tribunal find that they have an unwritten contract and construe a minimum hour week on the job history of each.
Thnaks
Submitted: 3 years ago.
Category: Employment Law
taratill
Expert:  taratill replied 3 years ago.

taratill :

Hello my name is Jenny and I am happy to help you today. Is it your intention to reduce their hours?

JACUSTOMER-c9mxi6qo- : Yes - neither of the staff work well, and in one case some of the work will be replaced by an outside company. In both cases we really want to have the legal right that would be conferred by the contract to roster such hours as we need.
taratill :

Hi the difficulty that you have is that it is not possible to insist that a person signs a contract of employment. If they refuse to sign them then they may, depending on the circumstances, be deemed to accept the terms if they are working under them. Your position is further complicated given that these people have been taken over under what is likely to be a TUPE Transfer. Under TUPE you are not entitled to change terms 'in connection with a transfer' and a change in terms on that basis would be deemed to be unlawful by an employment triibunal. The only reason you would be entitled to change terms would be if you could identify an 'ETO' (Economical technical or organisational ) reason to do so, this would be something like a redundancy situation. I am not sure this applies here.

taratill :

It seems to me that the best way of dealing with this may be performance management rather than giving out a new contract. Particularly if they are not up to the job.

taratill :

If the people have been working for 20 hours from between 1 - 3 years it is likely that a tribunal would find that they are contractually entitled to those hours through custom and practice.

taratill :

If you have any further questions please do ask.

JACUSTOMER-c9mxi6qo- : Thanks for your speedy reply. I think this is more or less the position we thought we were in. We do understand the TUPE regulations and our responsibilities under them, but felt that we might be entitled to insist that they signed our updated employment contracts. As you say, we will need to deal with the situation by regular performance management reviews. Many thanks for your help
taratill :

No problem, all the best with it. Please do remember to rate my answer and do come back to me for further help in the future if you need to.

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