HR - Employment Law Specialist Please help the little man
Discussion
Vicarious Liability.
Where I work the company is attempting to Change Terms and Conditions via the introduction of a new employee handbook, which we are expected to sign to say we agree to be bound by it. Now lots of people have issues as everyone seems to have different terms depending on when they joined. There is no union representation although I know that many of the shop floor are in unions. Staff (ie me) keep their politics and memberships private and quiet.
Anyway personally there are only a couple of issues (if you ignore the requirement to provide a copy of death certificate if you attend a funeral – talk about crass)
This is the main one :
Section 4.8
We reserve the right to require you to repay to the company, either by deduction from your salary or any other method acceptable to the company:
Any damages, expenses, or other monies paid or payable by the Company to any third party, for any act or omission for which the company may be deemed vicariously liable on your behalf.
I can’t agree to this as I don’t have liability insurance. If I read this right the company could take the shirt off my back.
When they start bullying me to sign I could get my own union involved – Association of Professional Engineers (which is a subset of amicus), but in this place once you start rocking the boat they spend the next few months trying to get you out.
What should I do. I can’t sign this.
Where I work the company is attempting to Change Terms and Conditions via the introduction of a new employee handbook, which we are expected to sign to say we agree to be bound by it. Now lots of people have issues as everyone seems to have different terms depending on when they joined. There is no union representation although I know that many of the shop floor are in unions. Staff (ie me) keep their politics and memberships private and quiet.
Anyway personally there are only a couple of issues (if you ignore the requirement to provide a copy of death certificate if you attend a funeral – talk about crass)
This is the main one :
Section 4.8
We reserve the right to require you to repay to the company, either by deduction from your salary or any other method acceptable to the company:
Any damages, expenses, or other monies paid or payable by the Company to any third party, for any act or omission for which the company may be deemed vicariously liable on your behalf.
I can’t agree to this as I don’t have liability insurance. If I read this right the company could take the shirt off my back.
When they start bullying me to sign I could get my own union involved – Association of Professional Engineers (which is a subset of amicus), but in this place once you start rocking the boat they spend the next few months trying to get you out.
What should I do. I can’t sign this.
RichBurley said:
Sign it, specifically excluding section 4.8.
It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
And if they PUSH it ?It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
RichBurley said:
Sign it, specifically excluding section 4.8.
It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
Completely agreed.It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
Unreasonable, and unenforcable.
What they are basically saying is if a client takes action against the company for work you were involved in that you will be personally picking up the damages, to a seemingly unlimited extent.
The company surely should have liability insurance for this. In effect, you are correct, they could demand the shirt off your back. In effect though, this wouldnt happen.
There is also the factor that if you are being asked to technically be the guarantor of six or seven figure deals, that perhaps your wages should be significantly increased probably to board level pay to cover this resonsibility!
In either case though, it does seem that whoever has written the handbook has done it with little thought for the people signing it, the bosses have signed it off with the same amount of thought, and probably most employees will treat it exactly the same.
jacko lah said:
RichBurley said:
Sign it, specifically excluding section 4.8.
It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
And if they PUSH it ?It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
) and that it is not acceptable, you're quite happy on your currents terms.RichBurley said:
jacko lah said:
RichBurley said:
Sign it, specifically excluding section 4.8.
It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
And if they PUSH it ?It is unreasonable; they are the insured employer; you are an employee, not a contractor. It is an unreasonable term, that they should not be able to force on you, after you have commenced employment with them.
It is important to get your issues in writing to them. It is completely unfair for you an an employee to put your house on the line to cover your work for a company. Not even the directors of the company do that!!
It is a constructive dismissal claim there if ever I saw one.
As Rich says, if they get legal advice they will back down. The handbook probably came from a template of T&Cs anyway...!
Eww, I'd love to see them try and take action in court under that Term !!
As said, you can score through that term and sign the doc or similar, in some respects what you do depends on whether you wish to remain employed by them, as in effect they wish to unilaterally change the terms of the contract, which you are not bound to accept.
As said, you can score through that term and sign the doc or similar, in some respects what you do depends on whether you wish to remain employed by them, as in effect they wish to unilaterally change the terms of the contract, which you are not bound to accept.
I agree with the advice you have been given, there is no way that term would be enforceable it would make a mockery of the idea of vicarious liability. Raise a grievance with the company over the issue as Rich/JustinP1 have suggested and see what happens from there - i'm fairly certain your employer will back down over the term, especially if they seek legal advice.
As has been said, you may well have a claim for constructive unfair dismissal should your company continue to push the matter. If it did go to tribunal I know which side I would rather be arguing.
As has been said, you may well have a claim for constructive unfair dismissal should your company continue to push the matter. If it did go to tribunal I know which side I would rather be arguing.
Edited by soprano on Thursday 27th September 13:43
It's a legal minefield for a company - they can't FORCE you to accept new terms. They CAN effectively scupper your career with them though if you refuse to sign, and they CAN start making your life difficult.
But if you put in writing you aren't prepared to sign and give sensible reasons why not, and THEN stuff starts happening, THEN they are just creating ammo for a constructive dismissal case.
...sadly, there's no guarantees you'd win that one, AND you'd have to resign and find yourself a new job, possibly without a reference if the bosses are vindictive sorts...
Starting an argument/fight with your employer is something I wouldn't do unless I was very confident about:-
a) My value to the company;
b) My legal position;
c) My ability to find a good new job quickly.
...but there's no way you should sign that. I'd agree with the 'strike out the offending sections and then sign it', perhaps asking your manager or a HR person to witness it. It's the best compromise you've got, IMHO.
But if you put in writing you aren't prepared to sign and give sensible reasons why not, and THEN stuff starts happening, THEN they are just creating ammo for a constructive dismissal case.
...sadly, there's no guarantees you'd win that one, AND you'd have to resign and find yourself a new job, possibly without a reference if the bosses are vindictive sorts...
Starting an argument/fight with your employer is something I wouldn't do unless I was very confident about:-
a) My value to the company;
b) My legal position;
c) My ability to find a good new job quickly.
...but there's no way you should sign that. I'd agree with the 'strike out the offending sections and then sign it', perhaps asking your manager or a HR person to witness it. It's the best compromise you've got, IMHO.
havoc said:
It's a legal minefield for a company - they can't FORCE you to accept new terms. They CAN effectively scupper your career with them though if you refuse to sign, and they CAN start making your life difficult.
But if you put in writing you aren't prepared to sign and give sensible reasons why not, and THEN stuff starts happening, THEN they are just creating ammo for a constructive dismissal case.
...sadly, there's no guarantees you'd win that one, AND you'd have to resign and find yourself a new job, possibly without a reference if the bosses are vindictive sorts...
Starting an argument/fight with your employer is something I wouldn't do unless I was very confident about:-
a) My value to the company;
b) My legal position;
c) My ability to find a good new job quickly.
...but there's no way you should sign that. I'd agree with the 'strike out the offending sections and then sign it', perhaps asking your manager or a HR person to witness it. It's the best compromise you've got, IMHO.
I would add to that:But if you put in writing you aren't prepared to sign and give sensible reasons why not, and THEN stuff starts happening, THEN they are just creating ammo for a constructive dismissal case.
...sadly, there's no guarantees you'd win that one, AND you'd have to resign and find yourself a new job, possibly without a reference if the bosses are vindictive sorts...
Starting an argument/fight with your employer is something I wouldn't do unless I was very confident about:-
a) My value to the company;
b) My legal position;
c) My ability to find a good new job quickly.
...but there's no way you should sign that. I'd agree with the 'strike out the offending sections and then sign it', perhaps asking your manager or a HR person to witness it. It's the best compromise you've got, IMHO.
d) Whether other employees feel the same way.
A more covert way forward may be to get a few 'friends' together by informing them what the term is and how it will effect them.
If you can get 5, 10 or 20 people together, especially if you can recruit a 'vocal' person, then there is more chance of the company making changes rather than seeing you as the one person who is making a fuss.
I am a sort-of employment professional and the situation with modified contracts is as follows:
You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
Cooperman said:
I am a sort-of employment professional and the situation with modified contracts is as follows:
You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
All good stuff there!You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
Couple of interesting and possibly pedantic points:
You are actually an employee from the start of the contract - that is from where you are offered the job and you accept it - this can be verbally, and even at your job interview!
After that point the employer must give you written terms of employment (within six weeks I think). This whole process can be legally done without any signing by any party, and is often done this way. Indeed, as you say by continuing to work you are deemed to have accepted the terms.
The only way to not accept these new terms is to reject them in writing. Thats a MUST.
Cooperman said:
I am a sort-of employment professional and the situation with modified contracts is as follows:
You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
Daft question here : If it's against employment law (and I understand you can not sign away your employment rights) then signing it will be irrelevant because ultimately the company could not enforce it as it's illegal? So I may as well sign it knowing full well I'm in the clear anyway ? You must have been issued with a Contract of Employment when you joined the company. If you did not, then they are in breach of the law. If you did not, then the terms are whatever you have worked to since joining and interpretation of those terms will always be in your favour should it come to a court or tribunal.
Accepting that you have a contract signed by and on behalf of the company, then that contract may not be changed without your consent in writing. You are not obliged to sign it if it in any way reduces or alters adversly the terms of your employment. To try to force you to do so is illegal under the EPA and if it led to you feeling it necessary to quit, it would be a 'constructive dismissal' under the terms of the Act. However, if you are notified of a change, don't sign accepting the change, but turn up for work after the date on which the change is deemed to have taken place, continue to work and have not rejected the change in writing, it could be said that you've accepted the change and agreed to it. It's called, I think, 'implied consent' or something similar.
If you initially received a Contract of Employment, but neglected to sign it that does not matter. It is the employer who has to sign it and, by turning up for work after receiving the initial contract, you have formally confirmed acceptance of the terms under which you joined. The only alterations which may be made to a contract without consent are the ones laid down under on-going employment law. Typically the requirement to retire at 65 has now gone and the minimum notice period which could start off at one week, but is increased for every year of service by one week per year to a maximum of 12 weeks notice after 12 years service (IIRC).
An employer is legally required to insure all employees for 3rd party liabilities and, I believe, it is unlawful to require an employee to insure himself/herself for contingent liabilities. Since 'Control, Direction & Supervision' of all employees is the duty of all employers, they cannot hive this liability off onto the employee. If the employer deducts NI contributions then you are confirmed as an employee as defined in law and protected as such.
I'm sorry if this is a bit long and I hope I've covered everything. Please come back to me if I have missed anything.
Good luck with this.
jacko lah said:
Daft question here : If it's against employment law (and I understand you can not sign away your employment rights) then signing it will be irrelevant because ultimately the company could not enforce it as it's illegal? So I may as well sign it knowing full well I'm in the clear anyway ?
As others have said, there is no way that they could enforce this - as an employee you cannot be required to take on more risk than your employer. Both the courts and the press would laugh at them - it is up to them to get insurance. But for peace of mind I would not sign it relying on this, though it may seem the easiest in the short term. Cross out the clause and sign it, trusting HR not to notice. Or draw attention to the fact that you have done so, and see if they will accept.
HTH
grumbledoak said:
jacko lah said:
Daft question here : If it's against employment law (and I understand you can not sign away your employment rights) then signing it will be irrelevant because ultimately the company could not enforce it as it's illegal? So I may as well sign it knowing full well I'm in the clear anyway ?
As others have said, there is no way that they could enforce this - as an employee you cannot be required to take on more risk than your employer. Both the courts and the press would laugh at them - it is up to them to get insurance. But for peace of mind I would not sign it relying on this, though it may seem the easiest in the short term. Cross out the clause and sign it, trusting HR not to notice. Or draw attention to the fact that you have done so, and see if they will accept.
HTH
Most likely the 'signing' bit will be something that says "I agree to the points of the employee handbook, yada yada...", rather than have a copy of it for you to sign.
Next to my signature I would simply write "with the exclusion of clause X.Y"
HR wont be bothered to follow it up, and even if they do you can explain your concerns.
grumbledoak said:
jacko lah said:
Daft question here : If it's against employment law (and I understand you can not sign away your employment rights) then signing it will be irrelevant because ultimately the company could not enforce it as it's illegal? So I may as well sign it knowing full well I'm in the clear anyway ?
As others have said, there is no way that they could enforce this - as an employee you cannot be required to take on more risk than your employer. Both the courts and the press would laugh at them - it is up to them to get insurance. But for peace of mind I would not sign it relying on this, though it may seem the easiest in the short term. Cross out the clause and sign it, trusting HR not to notice. Or draw attention to the fact that you have done so, and see if they will accept.
HTH
Most likely the 'signing' bit will be something that says "I agree to the points of the employee handbook, yada yada...", rather than have a copy of it for you to sign.
Next to my signature I would simply write "with the exclusion of clause X.Y"
HR wont be bothered to follow it up, and even if they do you can explain your concerns.
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