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THE IMPORTANCE OF THOROUGH EMPLOYMENT DOCUMENTATION IN AN EMPLOYMENT TRIBUNAL DEFENCE
by Helen Watson , Partner and Head of Employment Law at Aaron & Partners LLP
Contract of Employment Once the decision to recruit a new member of staff is taken , the importance of finalising the contract of employment should not be overlooked in a bid to get the appointment over the line . As well as the key terms an employee would look for , it is crucial from an employer ’ s perspective that any contract accurately reflects their business needs and ways of working . It is also now law that contracts must be provided on the first day of employment .
There is a long list of elements that must by law be contained in an employment contract . An employer is also likely to wish to protect its position on a practical level on termination of the contract , with clauses preventing a former member of staff poaching clients or setting up a rival business , for example .
Policies and Handbooks An employee handbook containing policies and procedures is another key document or suite of documents which sets out requirements and expectations of both sides on various matters relevant to employment within a business . Disciplinary and Grievance policies are two obvious examples , with different industries and businesses having different further considerations . Whilst also containing useful , practical information such as a business ’ values and key personnel , procedures included in these documents are invaluable when dealing with any workplace issue .
Scrutiny in the Tribunal It goes without saying that all employment documentation , including things such as an offer letter and not just those documents outlined above , should be carefully thought out and precisely drafted . Should these documents be challenged in a Tribunal , a defence will be challenged if there are gaps or inconsistencies in the documents which form the basis of the employment relationship . A witness who is able to refer to reliable contemporaneous documents whilst giving evidence will be under less pressure and appear more credible .
We often see issues arising when a business has tried to cover every eventuality with a broad brush – pledging that they will thoroughly
investigate all disciplinary issues , for example , and often within a timescale which they think will demonstrate fairness but may well be unattainable . Can an employer really conclude a disciplinary process within , say 14 days ? What about unforeseen circumstances that mean the timeframe must unavoidably be extended ? Being too prescriptive can also be a pitfall , and there is a balance to be struck .
Whilst thorough documentation is a great starting point , it is of little use if it is treated as a tick-box exercise and left untouched . A Tribunal will want to see evidence that a contract has been complied with and procedures followed , and so whilst being comprehensive in what they cover , the documents need to contain realistic clauses that can be put into practice in the day to day working environment .
Steps to Take It is important to get employment documents right at the outset so that they are less susceptible to challenge and can be used to guide both an employee and the employer through internal processes . Whilst there are certain things that must be covered , they should be tailored to a business ’ need where possible so that they are in fact usable : non-compliance with its own policies can be an employer ’ s downfall . Drafts should be thoroughly scrutinised with examples followed through to ensure that they work in practice , and training provided to staff where needed to ensure compliance . Having confidence in your documentation will carry through into an Employment Tribunal claim , and provide a solid ground on which to build a defence .
We frequently review existing employment contracts and employee handbooks and can draft bespoke documents to suit your needs .
If you require any advice or assistance in this regard please contact helen . watson @ aaronandpartners . com .
Helen Watson Partner and Head of Employment Law 01244 405 565
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