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Conditions of Service - Terms

ARTICLE ORIGINALLY PUBLISHED SEPTEMBER 2007

CLIENT'S QUESTION

I have spent a considerable amount of time and money ensuring that I have a Contract of Employment and Disciplinary Procedure. However, it is not possible to cover every eventuality. What other rights do employers and employees have in the workplace?

You are right. You could produce a Contract of Employment and a Disciplinary Procedure with as many pages as the Oxford Dictionary, and it's a safe bet that the first problem you encounter would not be covered.

However, hopefully, I can offer you some reassurance. Employers and Employees are bound by the written terms of the Contract and Employment and Salon Policies - these are called the Express Terms. Equally important, there are unwritten rules that both employers and employees are subject to, these are called Implied terms. In your Disciplinary procedure you do not have to specify every single potential disciplinary event . Similarly there is often nothing written about the standards that employees can expect from their employer.

Legal Position

There are many examples of Common Law which are relevant to Employers of salons. Employers have a common law of "duty of care". This means, for example, you must take reasonable steps to look after the health, safety and welfare of your staff.

Implied Terms are those which can be "implied" to exist in an employment relationship. For example, it is implied that employers have a duty to tell staff of potential benefits eg paternity leave. On the other hand it is implied that employers have a right to reorganise its workforce and workplace.

All of the following are implied terms which the employer can rely on:

  • Fidelity - this means that the employee can be expected to act in good faith, for example, not disclosing clients details or passing on trade secrets.
  • Confidence of Trust - some actions from employees may be seen as breaching this implied duty, for example, handing out rival competitors business cards in your Salon.
  • Unlawful Acts - employees have a duty to report any unlawful acts they become aware of such as colleagues stealing from the Salon.

Implied Responsibilities of Employers and Employees

Of course these implied rights also protect employees, and employers have duties, particularly in the area of health and safety. There is an obligation to provide a safe working environment. There have been recent Tribunal cases where employees have been successful at tribunal when their employer has failed to respond to their concerns, for example, smoking in the workplace.

More recently the working Time Regulations have increased manager's responsibility in the areas of working hours. They must, for example, ensure staff receive appropriate breaks, time off and are not compelled to work beyond an average 48 hour week.

There have been several cases where an employee has resigned following their employers failure to make adjustments to accommodate their disability. In these cases Tribunals concluded that the employer had acted in a way that destroyed the employees confidence and trust in their Employer and therefore breached an implied duty. The employees resignations successfully led to claims of constructive dismissal at Employment Tribunal.

Other examples of breaches of implied terms include:

Publicly rebuking a manager in front of staff and clients.

A repeated failure to respond to requests from a member of staff for a risk assessment to be carried out following the introduction of new equipment.

Using foul and abusive language to a member of staff.

Failure to investigate a complaint of racial or sexual harassment from a member of staff.

Repeatedly changing the terms and conditions of employment of employees.

Implied terms work to protect both Employers and Employees; hopefully it is clear that all of the above examples describe circumstances where most reasonable people would see the behaviour as being unacceptable.



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