Recent case law has shown the importance of drafting employment policies and handbooks carefully avoid creating a contractual obligation that is binding on the company without ever meaning for it to do so.
If, as an employer, you get this wrong, an employee may have a claim against your business for failing to comply with the terms stated in the policies or procedures. These can range from constructive dismissal to financial claims.
It is also more difficult to make changes and updates to your policies and procedures if they are contractual; formal consultations would be required in order to avoid a breach of contract claims.
The simplest way to avoid confusion is to always state that policies are non-contractual; whilst this is not an absolute protection, it is helpful to set it out at the beginning of any policy or procedure. If you refer to any policies or procedures in your contract of employment, you should also state there that they are non-contractual.
It’s all about how it’s worded. Make sure that it is worded in a way that gives you room to manoeuvre. Where possible, qualify the word ‘will’ with ‘normally’. By doing this you will avoid imposing too high an obligation on the company and on your line managers.
Committing to strict timelines in your procedures can also leave you open to criticism and disgruntled employees. Always aim for what is reasonable and word your policies to that effect.
It is important to look at all the documents that you provide to your employees even if they are documents only designed to support and guideline managers in how to conduct a procedure – although these are not issued to employees, if a claim was brought against you, these would be taken into account by the tribunal, so flexibility and reasonable expectations are still advisable.
Getting your contracts and handbooks right is one of the most important things you can do for your business. We offer a free review of contracts and handbooks so we can tell you where the gaps are, what needs updating, what needs putting in or taking out. Let us give you the comfort of knowing your documents are right and doing what they should be.
Send us your documents for a free review to firstname.lastname@example.org
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