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Starting employment — the legal issues

Starting employment — the legal issues by Michael Hibbs
Ten points to make sure you are fairly treated

Starting your first job is exciting and it is easy to get carried along with enthusiasm without ensuring that the correct paperwork is in place. It is only when something goes wrong that many employees (and employers) discover that they had not addressed important issues and that they thought one thing while the employer viewed it differently. So, what are the things you should consider when starting employment?

The advert

While it is true that some people approach their first employment through agencies, headhunters or by direct approach to a prospective employer, most employment is started as a result of reading an advert. There are lots of rules about the contents of employment adverts but the important thing to look at is whether or not there is a clear description of what the employer is looking for and whether you can gain any impression of the way in which your prospective employer may behave. Keep a copy of the advertisement because you may need to rely on its terms at a later stage.

The interview

The format of interviews varies considerably. The truly professional interviewer will have set questions which all candidates are asked and will only ask questions relevant to the actual job to be done. However, informal interviews can be perfectly acceptable so long as there are no intrusive questions about personal and private life which have no relation to the job. Particularly, questions such as whether you are married or have a family, in most cases, are unlikely to be relevant as to whether or not this is a job you could perform satisfactorily for this particular prospective employer.

Employment or not employment

There are numerous ways in which you can end up working for someone else. You could be an employee, self-employed, a partner, or a franchisee. It is very important to discover the basis on which you are to be carrying out your work. The tax treatment of any payments you receive will not necessarily define the basis on which you are working. If, however, you are working normal working hours for an employer who directs the work that you do, in all likelihood you will be an employee. Do not assume that just because you receive a document calling itself a franchise agreement, a partnership agreement or self-employment contract, that it actually contains what it says it does. You must read the contents and check it out. If you are still in any doubt, you will need to seek legal advice. Indeed, if you were looking at a franchise agreement or a partnership deed you would be wise to seek legal advice in any event.

The offer

Read any offer letter you receive carefully. Make sure that any verbal offers are confirmed in writing. Check that the letter includes the date when you start work, the amount of money that you are going to be paid, and ensure that you are clear about what you are going to do. Check that the offer letter agrees with the things that were discussed at interview, and if there are any differences, are they acceptable to you? Does the offer letter enclose other documents, or are they to be sent on later? Is the offer letter conditional? Many offers are conditional on a health check or on suitable references (for first employment the reference would be a character reference).

The acceptance

You should write back to accept the job that you want to accept and nothing more. If you agree that the acceptance is subject to conditions then say so. If there are documents you have not seen, then make your acceptance conditional upon seeing and agreeing with those documents. It would be wise at this point to confirm what documents you have seen and the dates of these documents.

Terms and conditions of employment

One document you should see at this stage, or shortly afterwards, is the terms and conditions of employment. The law requires certain basic terms and conditions to be provided to you, in writing, within two months of starting. It is normal for most employers to provide all of the information in one document. Read it carefully and make sure that you understand it. If there are issues that you do not agree with, or which conflict with, for example, the offer letter or the interview, then raise them with your employer at this stage. Do not leave it until later.

Clearly, among the most important factors are payment of salary and when it will be paid, holidays and when you can take them, what notice you have to give to terminate the contract, and what other benefits you are expecting. If the statement of terms and conditions does not contain other issues that you believe are important, then make sure that they are stated somewhere, if not in this document, in a contract, or in the offer letter. Such things as maternity and parental leave may well be important as well as any other family friendly policies.

If you do not receive terms and conditions (or a contract) within two months, then you can make a claim to a tribunal. However, most employees find it best to approach their employer and remind them of their responsibilities under the law which have, after all, been in place for 40 years!

The job description

This is likely to have been provided to you before or at the interview. However, many employers do not provide this until after you have started employment. Again, make sure that the document accords with your understanding of the job that you are to undertake. Is this a correct description? Does it include all the things you expected to be included? Are there things included which you would not want to see included at this point?

The contract

The contract is likely to be a much longer document than the statutory terms and conditions and may include additional terms and conditions. There is no necessity for such a separate document to be produced. The most important rule is not to sign this document until you have read it and carefully considered it. Do not be forced into signing a document when it is handed out to you and insist on having at least a weekend to think about it. If there are terms in the contract you do not understand, then ask for an explanation. If at any stage in the future there are variations to the contract, make sure that they are properly written down and signed by both your employer and yourself. Do make sure that you keep all of your documents safely (preferably together), keeping a copy at home. In the event that there are difficulties you will want to look them out straight away.

The handbook

Some employers, mostly very large employers, will have a handbook which contains terms and conditions as well as individual policies and procedures. It may contain a health and safety policy, a policy to do with using the computers and internet access, and disciplinary and grievance procedures, although those may be in the contract or the terms and conditions. It may also contain a motor car policy, especially if you are to use your skills in a sales capacity.

It is not necessarily the case that policies in a handbook are contractual. In other words, it does not necessarily mean that you can enforce them or the employer can enforce them against you. However, you should consider those directly applicable to your role carefully and you should try and keep the handbook handy.

What happens if it all goes wrong?

Hopefully, you will have found yourself a satisfactory post and all will go well. However, if, for any reason, it does go badly then first of all the disciplinary procedure may be invoked by your employer or there may be a probationary period which may result in termination. In the event of losing your employment, if you have more than one year's employment, you are entitled to ask for written reasons for your dismissal and if those are not provided then you are entitled to apply to the tribunal to have them stated.

There are also a number of other claims that could be brought to a tribunal. Claims for unfair dismissal depend generally upon one years completed service of employment but if the dismissal is for pregnancy-related reasons, health and safety reasons, or a wide variety of other precise claims, it may be possible to take action anyway. There are also other claims related to employment which do not require a particular length of service, such as race, sex or disability discrimination.

Although employment law can be seen as a minefield, employees and prospective employees should view it as, in the main, providing them with substantial protection from being exploited. The big lesson is to read everything that you receive carefully, keep copies, and seek advice if there is anything that you do not understand.

> Read adverts carefully
> Make notes at the interview
> Check whether you are to be an employee
> Read offer letters carefully
> Accept job offers precisely and in writing
> Check terms and conditions carefully
> Read the job description thoroughly
> Keep copies of all documentation, including contracts, safely
> Read the policies in the handbook that are related to your job
> If it all goes wrong, consider whether you have a claim

Professor Hibbs is head of employment, Shakespeares, and visiting professor of employment law at the University of Central England in Birmingham