New Job Offer - Contract Negotiations
Discussion
I posted a short while ago about being offered a new role and debating on whether or not to take it. I accepted and have today received the contract. I have a few queries and would be looking for some advice from the great PH collective before responding. Original question post here.
(1) The job description and contract have different job titles. I plan to request the one on the job description as this is the one which I was made aware of on application.
(2) The probationary period is 9 months. I plan to request this is shortened to 6 months.
(3) I've been told I have to opt-out of the 48-hour working time directive as below. I understand this is perfectly legal, but how common is it? It paints a picture of a company...
(4) The contract states I have a 12-week notice period should I choose to leave, and that the company will place me on garden leave. It also refers to "Restrictive Covenants" which prevent me from taking other employment in a similar capacity for 6 months from the termination of my employment with the company. This is shortened by 1 day for each day I am "excluded from the company premises and/or have not carried out any duties" - Essentially meaning I am not able to take a new role during my garden leave. How normal is this? I've never experienced it before.
(5) The contract prevents me from taking any other paid work outside of this role, whether during my working hours or not, without prior written permission. Again, is this standard? It seems overly restrictive.
It's all sort of taken the shine off things to be honest...
(1) The job description and contract have different job titles. I plan to request the one on the job description as this is the one which I was made aware of on application.
(2) The probationary period is 9 months. I plan to request this is shortened to 6 months.
(3) I've been told I have to opt-out of the 48-hour working time directive as below. I understand this is perfectly legal, but how common is it? It paints a picture of a company...
(4) The contract states I have a 12-week notice period should I choose to leave, and that the company will place me on garden leave. It also refers to "Restrictive Covenants" which prevent me from taking other employment in a similar capacity for 6 months from the termination of my employment with the company. This is shortened by 1 day for each day I am "excluded from the company premises and/or have not carried out any duties" - Essentially meaning I am not able to take a new role during my garden leave. How normal is this? I've never experienced it before.
(5) The contract prevents me from taking any other paid work outside of this role, whether during my working hours or not, without prior written permission. Again, is this standard? It seems overly restrictive.
It's all sort of taken the shine off things to be honest...
I am sorry to be a stuck record, but on this sort of thing you REALLY need to take insured specialist advice. This is especially so on the garden leave and restrictive covenants. On the garden leave and covenants, you can pay a lawyer 500 quid now, or choose not to, and risk having to pay a lawyer 100,000 quid in five years time. Bloke in pub says covenants are never enforced. Bloke in pub is wrong. People lose their houses through listening to bloke in pub. Bloke on PH is often just bloke in pub.
Salaried staff employers routinely ask people to waive the 48 hour max. You CAN say no. The fact that the company asks does not make it a bad company. They almost all ask this. This makes Anglo-Saxon office culture a bad culture. That is a different point. The French are right on this one.
Salaried staff employers routinely ask people to waive the 48 hour max. You CAN say no. The fact that the company asks does not make it a bad company. They almost all ask this. This makes Anglo-Saxon office culture a bad culture. That is a different point. The French are right on this one.
Maybe this is your first hefty job for a hefty company. Much of what you describe is bog standard for hefty jobs. The employer calls for your full attention during the contract, and may wish to limit your activity after the contract. It can do the former all it likes, and the latter to a limited extent, subject to a reasonableness test.
If this is a job clearing tables, the employer needs to have a word with itself. If this is a hefty job, you need to have a word with yourself.
If this is a job clearing tables, the employer needs to have a word with itself. If this is a hefty job, you need to have a word with yourself.
Edited by anonymous-user on Thursday 18th May 14:05
Breadvan72 said:
Maybe this is your first hefty job for a hefty company. Much of what you describe is bog standard for hefty jobs. The employer calls for your full attention during the contract, and may wish to limit your activity after the contract. It can do the former all it likes, and the latter to a limited extent, subject to a reasonableness test.
If this is a job clearing tables, the employer needs to have a word with itself. If this is a hefty job, you need to have a word with yourself.
The role itself is broadly similar to my own, but yes, the company is much larger. More than anything I'd be interested to know like you've told me, whether these are 'standard' clauses. To someone who has never experienced them before, it's quite nerve-wracking. If this is a job clearing tables, the employer needs to have a word with itself. If this is a hefty job, you need to have a word with yourself.
It matters not much whether the clauses are standard. They are the clauses that the employer wants. You can try to negotiate for other terms. If that fails, it may be take it or leave it. When a clause is challenged in court, it can sometimes (not always) be a relevant factor that the clause reflects a norm in a business sector, but that is rarely a decisive factor.
The contract requires loyalty and fidelity. You take on commitments to the employer. Don't be all Millennial and think that the gig is all about the employer's obligations to you.
Also, employment law favours the employer, not the employee, despite what fibbers like Farage say. The contract of employment is not always a fair and equal bargain. Check up on what Marx had to say about employment in a Capitalist system. Marx was wrong about lots of things, but right about that.
The contract requires loyalty and fidelity. You take on commitments to the employer. Don't be all Millennial and think that the gig is all about the employer's obligations to you.
Also, employment law favours the employer, not the employee, despite what fibbers like Farage say. The contract of employment is not always a fair and equal bargain. Check up on what Marx had to say about employment in a Capitalist system. Marx was wrong about lots of things, but right about that.
Breadvan72 said:
It matters not much whether the clauses are standard. They are the clauses that the employer wants. You can try to negotiate for other terms. If that fails, it may be take it or leave it.
The contract requires loyalty and fidelity. You take on commitments to the employer. Don't be all Millennial and think that the gig is all about the employer's obligations to you.
No, it matters quite a bit. If an employer appears to be inflexible and regimented in comparison to others when issuing a contract, it paints a picture of what they might be like to work for. If the terms of the contract appear overly firm on first glance, but upon review (such as asking if they are standard) then it transpires that they are quite standard terms which most people work under, then it would be the potential employee's mind at ease that this employer is not going to be overly draconian.The contract requires loyalty and fidelity. You take on commitments to the employer. Don't be all Millennial and think that the gig is all about the employer's obligations to you.
If they're not standard clauses, then it also means there is more chance of having them modified in negotiation rather than just having to accept them. For example, if a company state that you must work 37.5 hours per week, then this is pretty standard and you're not likely to get it adjusted. But if they state you get 20 days holiday per year and you want 25, then there's a little more movement as 25 days leave is not 'rare'.
This is my first role with some of these terms in the contract and would be my fourth full-time role of my employed life. I'm looking for some balance before I negotiate and to get a greater understanding of what this employer might be like to work for. If they don't adjust certain clauses then yes, I am quite aware they have the right to rescind the offer or perhaps I just decide not to take it. I'm weighing up my decision.
But thanks for the patronising millennial talk. I'll have to go have some avocado on toast while complaining that I actually have to save money for a house deposit
Enjoy the house, and the toast is overrated anyway. Your opening post suggested that your approach might be the typical Millennial me me me approach. For example, wondering if the employer could stop you taking a new role during garden leave (of course it can - that is what garden leave is for.). My apols if I misread you. I have been interviewing people, so am all Millennialed out. They are dire, but my generation (late Baby Boomers) is to blame for the direness of the Millennials.
Clauses of the kind you describe are commonplace in hefty jobs of many kinds. Whether an employer insists on standard terms or will do a bespoke deal varies enormously from job to job, obvs. Rigidity may indeed be a bad sign, but some organisations are just ponderous,and may still be OK despite this.
Few big employers nowadays put forward stupid covenants. If the covenants are stupid, you have a tough call. Accept them, in the belief that they won't be enforceable, or negotiate non stupid ones. That is always a tricky one. I favour the latter course. More certain. Less ethically wobbly.
Clauses of the kind you describe are commonplace in hefty jobs of many kinds. Whether an employer insists on standard terms or will do a bespoke deal varies enormously from job to job, obvs. Rigidity may indeed be a bad sign, but some organisations are just ponderous,and may still be OK despite this.
Few big employers nowadays put forward stupid covenants. If the covenants are stupid, you have a tough call. Accept them, in the belief that they won't be enforceable, or negotiate non stupid ones. That is always a tricky one. I favour the latter course. More certain. Less ethically wobbly.
Edited by anonymous-user on Thursday 18th May 14:44
Breadvan72 said:
Enjoy the house, and the toast is overrated anyway. Your opening post suggested that your approach might be the typical Millennial me me me approach. For example, wondering if the employer could stop you taking a new role during garden leave (of course it can - that is what garden leave is for.). My apols if I misread you. I have been interviewing people, so am all Millennialed out. They are dire, but my generation (late Baby Boomers) is to blame for the direness of the Millennials.
Clauses of the kind you describe are commonplace in hefty jobs of many kinds. Whether an employer insists on standard terms or will do a bespoke deal varies enormously from job to job, obvs. Rigidity may indeed be a bad sign, but some organisations are just ponderous,and may still be OK despite this.
Few big employers nowadays put forward stupid covenants. If the covenants are stupid, you have a tough call. Accept them, in the belief that they won't be enforceable, or negotiate non stupid ones. That is always a tricky one. I favour the latter course. More certain. Less ethically wobbly.
The covenants are a bit of a bugger, but not the end of the world. I get the feeling a 9-month probation is a bit much though?Clauses of the kind you describe are commonplace in hefty jobs of many kinds. Whether an employer insists on standard terms or will do a bespoke deal varies enormously from job to job, obvs. Rigidity may indeed be a bad sign, but some organisations are just ponderous,and may still be OK despite this.
Few big employers nowadays put forward stupid covenants. If the covenants are stupid, you have a tough call. Accept them, in the belief that they won't be enforceable, or negotiate non stupid ones. That is always a tricky one. I favour the latter course. More certain. Less ethically wobbly.
Edited by Breadvan72 on Thursday 18th May 14:44
Sounds a bit steep, but probation is to some extent a red herring, as for the first two years the employer can sack you for good reason, bad reason or no reason at all (except for one of a list of special reasons to do with equality and whistleblowing and some other stuff). IN effect, all jobs have two year probationary periods. After two years, the employer has to have a good reason to sack you. There is no guarantee that this rule will survive the next Parliament, although whether May will go so far as to abolish unfair dismissal (an early 1970s and pre EU invention) is unclear.
You have no ordinary unfair dismissal protection for two years. You have some other statutory protections from day one. You have protection from wrongful (as opposed to unfair) dismissal from day one. Wrongful means in breach of contract - ie a summary or short notice dismissal absent gross misconduct. A wrongful dismissal, if proven, destroys any restrictive covenants, as a party that has itself repudiated a deal cannot rely on that deal (the common law of contract is mostly fair, just, and sensible - most of its principles date from the C18 and C19).
An employer could lawfully sack someone after, say, three months in the job and then insist on the post termination restrictions being enforced. Enforcement by injunction is a matter for the Court's discretion, and short employment could be a discretionary factor against enforcement.
You have no ordinary unfair dismissal protection for two years. You have some other statutory protections from day one. You have protection from wrongful (as opposed to unfair) dismissal from day one. Wrongful means in breach of contract - ie a summary or short notice dismissal absent gross misconduct. A wrongful dismissal, if proven, destroys any restrictive covenants, as a party that has itself repudiated a deal cannot rely on that deal (the common law of contract is mostly fair, just, and sensible - most of its principles date from the C18 and C19).
An employer could lawfully sack someone after, say, three months in the job and then insist on the post termination restrictions being enforced. Enforcement by injunction is a matter for the Court's discretion, and short employment could be a discretionary factor against enforcement.
Edited by anonymous-user on Thursday 18th May 15:39
romeogolf said:
The covenants are a bit of a bugger, but not the end of the world. I get the feeling a 9-month probation is a bit much though?
Hi, I am HR for a large company, contract clauses do sound very standard, I have most of them in mine. However Probabtion is limited to three months, and in reality the only difference is one weeks notice versus three months during the probation period. I do on balance think 9 months is a bit off, after all if you aren't working out, they ought to know way before 9 months.
Exclusive working, non compete clause, garden leave - all quite normal in large companies. I am afraid this is usually as contract terms are standard, I wouldn't enforce those terms for a junior employee in a non critical role (say a line one manager in the IT department) but I might want to in the case of a sales director or R&D manager. Hence they tend to appear in everyones contract to ensure clarity and coverage.
Personally I wouldn't take legal advice, I would negotiate the things that bothered me, walk away or sign it and have done !
Gargamel said:
romeogolf said:
The covenants are a bit of a bugger, but not the end of the world. I get the feeling a 9-month probation is a bit much though?
Hi, I am HR for a large company, contract clauses do sound very standard, I have most of them in mine. However Probabtion is limited to three months, and in reality the only difference is one weeks notice versus three months during the probation period. I do on balance think 9 months is a bit off, after all if you aren't working out, they ought to know way before 9 months.
Exclusive working, non compete clause, garden leave - all quite normal in large companies. I am afraid this is usually as contract terms are standard, I wouldn't enforce those terms for a junior employee in a non critical role (say a line one manager in the IT department) but I might want to in the case of a sales director or R&D manager. Hence they tend to appear in everyones contract to ensure clarity and coverage.
Personally I wouldn't take legal advice, I would negotiate the things that bothered me, walk away or sign it and have done !
I had a follow on question. Some senior execs regularly take non exec roles on other boards. How is this managed in contracts? I'm thinking of my former dotted line boss who sits on 2 boards with permission from the company. When I asked her, she said she was encouraged to do this by the CEO to gain breadth, but that she still had to abide by the standard company contract which prohibits this
Possibly also haggle on the garden leave and covenants, if you can and wish, but the employer may hang tough on these, and might get the wrong message if you make a fuss about these things. Unless the garden leave and covenant clauses as eventually agreed are crazy, it would be prudent to assume that they will stand up to a challenge, and to act accordingly when the time comes to move on, or, if in doubt, get advice at that time before making any drastic moves.
The jiffle king said:
I had a follow on question. Some senior execs regularly take non exec roles on other boards. How is this managed in contracts? I'm thinking of my former dotted line boss who sits on 2 boards with permission from the company. When I asked her, she said she was encouraged to do this by the CEO to gain breadth, but that she still had to abide by the standard company contract which prohibits this
With consent, anything is possible. Even a contract that says "this contract can NOT be amended" can be amended, by consent.The jiffle king said:
I had a follow on question. Some senior execs regularly take non exec roles on other boards. How is this managed in contracts? I'm thinking of my former dotted line boss who sits on 2 boards with permission from the company. When I asked her, she said she was encouraged to do this by the CEO to gain breadth, but that she still had to abide by the standard company contract which prohibits this
A common approach is to not allow working for other companies unless you are given express permission. Some companies will have clear policies and forms for such situations. On the exclusive working clause, I've had this a couple of times. I just wrote to them prior to accepting saying that I occasionally play in a band for beer money, and provide some IT support for a charity (or whatever) and they reply giving permission.
I agree with the above, 9 months probation is unusually long. We'd do 6 months for developers, 3 months for other roles.
I agree with the above, 9 months probation is unusually long. We'd do 6 months for developers, 3 months for other roles.
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