Get the information you need to practice law Quickly, Easily and No Subscription Required.
What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Other employment documentation - overview
As well as contracts of employment there are a number of other documents which may regulate the employment relationship.
Handbooks are not mandatory, and their format (eg intranet, written document) and precise content will differ depending on the organisation. They are, however, useful ways of providing information in respect of an organisation's:
formal procedures, such as those on sickness absence, and disciplinary and grievance issues
other policies, such as an equality or equal opportunities policy
rules and procedures for the smooth and efficient running of the business, such as a company dress code
aims and culture
Policies are often put into a handbook, to avoid making them contractual. However not all policies in handbooks are non-contractual. Whether or not a policy has contractual force depends on factors including how it is referred to in the contract of employment, and the status of other policies within the handbook. If an employer wishes a particular policy to be contractual or non-contractual, it is advisable to state this expressly in the policy.
For further information, see Employee handbooks.
Collective agreements are agreements negotiated between trade unions and employers or employers' associations.
To be enforceable between the trade union and the employer or employers' association, the agreement must generally:
be in writing
indicate that the parties intend it to be legally enforceable, and
relate to one of the prescribed areas of collective negotiation, such as terms and conditions of employment, or discipline
Collective agreements are not automatically incorporated into individual contracts of employment. However, they will be incorporated if:
the individual contract expressly provides for it, or
custom and practice mean that collectively agreed terms are incorporated.
Even if an agreement is incorporated, any subsequent changes would also have to be incorporated.
Where the agreement is a no strike agreement, additional provisions apply.
For further information, see Collective agreements.
Policy documents are usually, but not exclusively, non-contractual. There will therefore be occasions when it would be inappropriate to follow a policy because to do so would breach an express term of the contract. The most common policies include those relating to equality or equal opportunities and family friendly leave.
Where policies are non-contractual, they can be unilaterally amended by the employer. Even if they are contractual, the employer may nevertheless attempt to reserve the right to amend them unilaterally.
Whilst a failure to follow a particular policy may not give rise to a breach of contract claim, it may nevertheless lead to a successful non-contractual claim, eg a failure to follow a whistleblowing policy may gives grounds for a detriment claim.
For further information, see Policy documents.
Disciplinary and grievance procedures
An employee's written statement of particulars must either:
include the details of the employer's disciplinary rules and procedure, and identify the person to whom the employee should go to appeal a decision or raise a grievance, or
refer the employee to a document containing these details
Typically, employers contain such details in separate documents.
The right to a fair trial under Article 6 of the European Convention on Human Rights does not apply to the internal procedures of private sector employers, and can only apply in strictly limited circumstances to disciplinary procedures in the public sector, but employers do in any event need to follow the principles of natural justice.
Acas provides guidance and key principles for employers, on both disciplinary and grievance procedures, in its Code of Practice on Disciplinary and Grievance Procedures.
Workers have the right to be accompanied to a disciplinary or grievance hearing.
Disciplinary and grievance procedures are often non-contractual, but the same principles which apply to any other type of policy also apply to them with regard to determining their contractual status. If a disciplinary policy is contractual, and an employee is dismissed without it being followed properly, the employee will be able to bring a claim for breach of contract.
A first disciplinary offence will usually attract a warning, rather than meriting dismissal, unless it is sufficiently serious. Warnings should usually have a limited period of validity, after which they should be disregarded.
For further information, see Disciplinary and grievance procedures.
To find out more about PSL Contact us or call 0207 400 2984