Legal advice from the NGCAA: Employment contracts

Alistair Dunsmuir
By Alistair Dunsmuir January 21, 2021 11:49

The government published the Good Work Plan in 2018 which was aimed primarily at tackling some unfairness in the ‘gig’ economy. It sought to promote the concept of decent and fair work, as well as encouraging employers to offer scope for staff to develop and progress.

The result of the Good Work Plan was that we saw a number of changes to employment law, the bulk of which came into force on April 6, 2020. Many of those changes may have been ‘lost’ by golf club employers in April 2020 due to Covid.

As a reminder, and to help ensure that clubs are up to date, we take a look in this article at some general employment contract issues, as well as the changes that should have taken effect in staff contracts back in April 2020.

General

Golf clubs will invariably have staff who work under different forms of contractual arrangements: some will be self-employed, some fall into a hybrid ‘worker’ category and others will be employees. Here, we focus on employees, although there is a brief mention of workers, below, on one particular issue arising from the Good Work Plan changes.

For there to be a binding contract there must be an offer of employment, ideally in writing (for example by letter enclosing a copy of the contract of employment). There must also be an acceptance of that offer. When offering employment, it is recommended that written records of the offer and acceptance are kept by the club.

Employees should be given written contracts of employment setting out all matters relating to their employment. Within two months of starting work, it is a legal requirement that employees must be provided with a written statement of certain specified terms of employment (often known as a statement of employment or written particulars of employment). These can be included within a contract of employment. If these terms are not provided an employee could make a claim at an employment tribunal.

The following terms must be provided to the employee: Name of the employer and employee; The date employment starts and the date that the employee’s continuous employment started; Job location / place of work; Pay (or method of calculating it) and whether it is paid weekly, monthly etc; Working hours; Holiday entitlement and holiday pay; Job title and brief description of the work; Terms relating to incapacity absence and sick pay; Notice periods for termination of employment by the club and employee; Terms relating to pensions and pension schemes; Details of disciplinary and grievance procedures including the appeals procedure under the disciplinary and grievance procedures; Terms related to work outside the UK for a period of more than one month; Terms relating to length of temporary or fixed-term work; and Details of any collective agreements directly affecting the employment.

Changes from April 6, 2020

The right to a written statement of terms and conditions is now extended to those in the ‘worker’ category, so it is not just applicable to employees. Note, though, that it is only for those workers who are engaged by the ‘employer’ at any time after April 6, 2020. Existing workers (who are not in the employee category) do not have a right to receive a written statement unless they are re-engaged by the employer after that date.

In relation to both employees and workers, there is now an extended list of information that must be included within the statement of terms. Previously, the required particulars were as set out above, but the additional items are listed below. Many golf clubs may already have this information included, so it is wise to conduct a review of existing contracts and amend if necessary.

Existing employees have the right to request a fresh statement of terms and conditions of employment to include this additional required information.

The additional prescribed details required are as follows:

  • In relation to hours of work, particulars of the days of the week they are required to work and whether or not such hours or days may be variable and, if they are, how they vary or how that variation is to be determined
  • Any terms and conditions relating to any paid leave (in addition to holiday or sick leave)
  • Any other benefit that is not covered elsewhere in the written statement
  • Details of any probationary period, including conditions applicable to it and its duration
  • Details of any training entitlement provided by the employer, whether it is compulsory and particulars of any other compulsory training for which the employer will not pay

The Good Work Plan legislation also increased the reference period for calculating holiday pay from 12 weeks to 52 weeks where a worker has variable remuneration. Where the worker has been engaged for less than 52 weeks, the reference period will be the number of weeks for which the worker has been engaged.

A new right to parental bereavement leave was introduced (subject to conditions), as well as changes to IR35 schemes and pay / conditions for agency workers.

Other matters to consider

Beyond the minimum requirements, it can often be sensible to have some additional clauses for certain employees’ contracts. Examples might include terms relating to accommodation provided as part of the job, terms relating to vehicle usage and any post-termination restrictions.

Where there is an insufficient or no written record, terms may still be expressly agreed if they are agreed verbally; those terms could still have a binding effect. The trouble is, there is likely to be uncertainty after time lapses, personnel change and memories fade.

Additionally, terms may be implied into a contract or inferred from the conduct of the parties. Instances when terms may be implied include: when they are too obvious to mention; when both parties assumed that they would be included; from the conduct of the parties; because they are necessary to make the contract work; or because they are part of the custom and practice of the employer’s business.

Standard terms which are implied into all contracts of employment include:

  • the employee’s duty to serve his employer with good faith and fidelity, obey lawful and reasonable orders and exercise reasonable care and skill;
  • the employer’s duty to pay wages, provide work, provide a suitable and safe working environment and redress grievances; and
  • the mutual duty of trust and confidence, which prevents an employer conducting itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

Where a club realises that an employment contract has not been issued, or it has but does not include all of the express terms, it should seek to issue a contract or an updated version, for the employee’s agreement. Provided this contract reflects the agreed terms under which the employee works then there is little risk of any challenge. However, great care must be taken if a club wishes to issue contracts containing new or different terms because such a step can amount to a dismissal and result in unfair or constructive unfair dismissal claims in the employment tribunal. Such changes to an employee’s terms during their employment should only be done by agreement with the employee. Changes made without agreement may have serious legal consequences and liabilities, so a club should take early legal advice before taking such action.

Once any change to the terms in a contract or statement of employment is agreed, the club must give the employee a written statement containing details of the change at the earliest opportunity, and no later than one month after the change. If considering changes to terms and conditions, it is recommended that early advice be obtained from the NGCAA.

Clubs often have non-contractual provisions relating to employment, such as policies and procedures. It is important to keep such provisions in documents separate to contracts of employment, such as staff handbooks, and to make it clear that such provisions do not form part of the contract of employment. This will help the club have more flexibility and possible scope to change such provisions without first obtaining the agreement of the employee.

The NGCAA can provide template contracts of employment to help clubs comply with the law, including the additional clauses needed after April 6, 2020; we have standard contracts, zero hours contracts and a variety of additional clauses that can be tailored to a club’s needs. We also have a large number of policy and procedure documents to form a staff handbook. The NGCAA can review existing contracts and policy documents as part of a club’s standard membership fee, in addition to including all associated advice about them.

For more advice on contracts of employment or any other golf club legal matter, please do not hesitate to contact Alistair Smith on alistair@ngcaa.co.uk or 01886 812943.

Alistair Dunsmuir
By Alistair Dunsmuir January 21, 2021 11:49
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