Legal advice: Write it down and get it right

Our legal team looks at employment contracts.

By Martin Donoghue of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

People are cynical. Take an example from my job. I am an employment lawyer, and one of my pet subjects is the need to have properly prepared contracts of employment, writes Martin Donoghue.

And yet, whenever I bring the subject up, all I hear is that there is no need for a contract and I am only raising the subject to part people from money they would rather not give to me. Can you believe that?

Well, apart from the legal provisions that require certain key terms to be written down and given to an employee within a specified time after they start their job, here is a cautionary tale.

An employer took on an employee in a fairly senior position. Hoping to save money by not getting proper advice, he sent the employee an offer letter "containing the terms of your employment". The employee sent a letter back accepting the terms in the letter.

Shortly after, the employer realised he had left out certain important terms - for example, prohibiting the employee from competing with him after the employment had ended, and the fact that the bonus was discretionary, and failed to cover all the written terms statute says he should, and sent a follow-up letter to set the record straight.

Unsurprisingly, the employee, seeing that these new terms were not to his advantage, told the employer that the deal had already been done, and that he did not accept these changes.

Again unsurprisingly, the matter ended up in court and the court agreed with the employee: the contract had been made on the terms in the offer letter and the employer was not justified in changing them. This left the employer out of pocket with a contract that was just not suitable and which, unfortunately, he was unable to change.

Mind you, it could have been worse. There is a legal requirement for certain key employment terms to be written down and notified to an employee shortly after he or she starts work. These range from the obvious (the names of the employer and the employee) to terms relating to holidays, sickness, pensions and notice.

If an employee has not been given these details, he or she can apply to an employment tribunal. If a term is not in the statement, and no term has been agreed, a tribunal can infer a term from the facts before it. This power can be dangerous and costly to an employer (and useful and of considerable benefit to an employee) as an employer may find that a tribunal implies a term it would rather the tribunal had not, and perhaps on a subject the employer had been deliberately vague about.

Fortunately for our employer, his employee did not bring this type of claim, so there was a silver lining to his cloud, even if his had proved to be a very expensive mistake.