As an employment lawyer I often see employers inadvertently making errors in their employment contracts that could lead to costly disputes down the line. Employment contracts are the foundation of the employer-employee relationship, and ensuring they are accurate, comprehensive, and legally compliant is critical for protecting your business. Below, I’ve outlined some of the most common mistakes and provide practical tips on how to avoid them.

1. Failing to Provide a Written Statement of Employment Terms

Under UK law, employers are required to provide employees with a written statement of particulars of employment by the first day of work. This statement must include key information, such as:

• Job title and description
• Start date and continuous service date
• Hours of work
• Pay and benefits
• Notice periods

How to avoid this mistake: Make it a standard practice to issue a comprehensive written contract to every new employee before their start date. Consider using a checklist to ensure all required terms are included.

2. Using Generic or Outdated Templates

Employment laws and business needs evolve over time. Relying on generic templates or contracts drafted years ago can lead to non-compliance with current legislation or insufficient coverage of important clauses.

How to avoid this mistake: Regularly review and update your employment contracts to reflect changes in law and your specific business requirements. Engaging an employment lawyer to tailor your contracts ensures they are both compliant and fit for purpose.

3. Overlooking Key Clauses

Some employers miss vital clauses that could protect their business, such as:

• Confidentiality clauses: To safeguard sensitive information.
• Restrictive covenants: To prevent employees from poaching clients or joining competitors after leaving.
• Intellectual property rights: To clarify ownership of work created during employment.

How to avoid this mistake: Identify the risks specific to your business and incorporate clauses that mitigate them. A bespoke contract drafted by a legal professional will address these areas comprehensively.

4. Ambiguities in Terms and Conditions

Vague or poorly drafted terms can create uncertainty and lead to disputes. For instance, unclear wording about bonus entitlements or working hours can result in misunderstandings.

How to avoid this mistake: Ensure that all terms are clear, precise, and unambiguous. Seek legal advice if you’re unsure how to phrase a particular clause.

5. Not Accounting for Changes in Employment Terms

Businesses evolve, and so do employee roles. Failing to update contracts to reflect changes in job duties, salary, or working hours can result in breaches of contract.

How to avoid this mistake: Establish a process for reviewing and updating employment contracts whenever there are significant changes. Obtain the employee’s written agreement to any amendments.

6. Ignoring Statutory Rights and Minimums

Some employers inadvertently breach statutory requirements, such as failing to provide the minimum notice period or holiday entitlement.
How to avoid this mistake: Familiarise yourself with the statutory requirements under UK law and ensure your contracts meet or exceed these minimums. Legal advice can help ensure compliance.

7. Overlooking Probation Periods

Including a probation period in employment contracts allows you to assess an employee’s suitability for the role. However, some employers either omit this clause or fail to detail its terms, such as the length of the probation period and notice requirements during this time.

How to avoid this mistake: Clearly outline the terms of the probation period, including how performance will be assessed and what happens at the end of the probation.

8. Protect your interests

Employment contracts are not just legal documents; they are tools to manage expectations and protect your business interests. By avoiding these common mistakes and seeking professional advice, you can reduce the risk of disputes and create a solid foundation for a productive employment relationship.

If you’re unsure about your existing contracts or need help drafting new ones, our team at Franklins Solicitors is here to help.

Please contact our Employment Law team on 01604 936512 / 01908 953674 or email info@franklins-sols.co.uk.

Terms and conditions are legal contracts that govern the use of a service or product. They establish the terms of the relationship between the parties and mitigate against potential disputes.  

Terms and conditions are important to outline the rules and regulations around the use of a service or product. Businesses often put themselves at risk by not specifying that the terms form part of the contract. The enforceability of terms and conditions is regularly misunderstood, and they are not automatically legally binding. The success of a transaction depends on the agreements between parties. The content of these agreements will be subject to negotiation, which can give rise to the “battle of the forms”.

1. The importance of incorporation

Effectively incorporating a business’ terms and conditions into a contract is therefore necessary to ensure that a transaction will be successful. It is all the more important to incorporate terms and conditions into a contract as it provides a certain clarity and certainty in relation to the rights and obligations of the parties involved. With clear terms and conditions in a contract, there is less room for disputes.

When it comes to express and implied terms, incorporating terms and conditions allows parties to specify their goal. By doing so, the parties’ reliance on implied terms will be reduced.

2. Battle of the Forms

The battle of the forms will occur when two or more parties are looking to make a contract, and each party attempts to incorporate its own terms and conditions. The issue will be to determine which terms and conditions will govern the contract.

There are four different outcomes, depending on the circumstances:

• Last terms sent apply, which means that the last set of terms which was sent before acceptance or performance will apply. This is often referred to as the “last shot”.
• When other terms apply however, this means that the parties’ conduct together with documents passing between them only shows that other terms will prevail.
• No other terms will apply if neither party’s terms and conditions are incorporated.
• There will unfortunately be no contract if the parties cannot agree on the terms. Therefore, if something goes wrong, they will have to rely on the law of restitution for a remedy.

 Offer and Acceptance

When incorporating terms and conditions, parties essentially apply the principles of offer and acceptance. In exchanging the forms, parties are making offers and the terms which are accepted will form the binding contract. It is therefore crucial to have clearly drafted terms and conditions as the parties will be relying on it throughout the life of the contract.

Incorporating terms and conditions into contracts promotes clarity and provides a certainty to the parties which is crucial to business relationships. This allows for the parties to be bound by the terms of the contract. This is a way to reinforce the contractual relationship. It is therefore important to clearly define the terms for the parties to establish some sort of legal certainty which is required when entering into a business relationship.

Our Commercial team has a wide range of experience when it comes to drafting terms and conditions, as well as advising on incorporation techniques, and will be happy to assist your business with this process.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Terms and Conditions of a business are the legal contract between a provider and customer for the supply of goods or services. This contract regulates the business relationship between the provider and customer by setting out the rights and responsibilities of each party.

It is often the case that businesses decide to put in place standard terms and conditions as it is a quicker and easier process. However, more often than not, it turns out that the terms do not cover every aspect of the business relationship and these gaps can cause unwanted dispute. It is therefore important for a business to ensure that the terms provided to the customer clearly and fairly cover all the elements of the relationship.

Key provisions

Although most agreements vary from one another depending on the goods or services provided, there will be key provisions that remain similar.

• A limitation of liability clause will allow for the parties to be protected against any breaches as well as establishing what would happen and limit a party’s exposure to liability should such breach occur. It is therefore important for such provision to be drafted in an unequivocal way.
• The term of the agreement should be clearly set out as well in order to determine whether the business relationship exists for a fixed term, and if so, the length of this business relationship.
• The consideration should also be a recurring provision between different terms and conditions. This would enable the parties to clearly lay out the consideration amount as well as the method of payment and what would happen in the event of late payment.
• Another important provision would be regarding data protection and compliance with GDPR regulations so both parties can agree the correct protocol to protect the data passed on between themselves.

The above is a non-exhaustive list of the provisions to consider and look out for when reviewing terms and conditions and it is therefore important for businesses to take legal advice when drafting terms and conditions or before signing said terms. Our Solicitors have a wide range of experience in advising businesses and dealing with drafting and negotiating terms and conditions in accordance with their client’s instructions so the contract is truly tailored to their needs. 

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The High Court has held that a supplier’s standard terms and conditions were incorporated by reference when the customer signed an electronic order form, but that an onerous and unfair cancellation fee could not be enforced against the customer as it was not effectively incorporated into the contract.

In Blu-Sky Solutions Ltd v Be Caring Ltd [2021] EWHC 2619 (Comm), the supplier sent an electronic order form to its customer stating that all orders and contracts were subject to its standard terms and conditions set out on its website.  The customer signed the order form but later withdrew its order.  The supplier sought to enforce a cancellation fee payable under its standard terms and conditions but its customer argued that the clauses relied upon by the supplier were sufficiently unusual and onerous that they should have been brought to its attention fairly and reasonably by the supplier.

It was held that while the supplier’s standard terms and conditions had been effectively incorporated into the contractual relationship between the parties by reference, the clauses relied upon were not incorporated because, given they were unduly onerous, they should have fairly and reasonably been brought to the customer’s attention.

The decision makes it clear that where a signed contract incorporates terms by reference, where the terms are unduly onerous they need to be brought to the specific attention of the signing party.

For advice on contractual matters, including effective incorporation strategies, please Christopher Buck, Associate Partner and Solicitor, on 01908 660966 / 01604 828282 or by email at Christopher.Buck@franklins-sols.co.uk.

The Coronavirus pandemic has caused the Government to order the mandatory closure of all schools and nurseries across the United Kingdom, but where does that leave those parents whose children attend independent schools and nurseries? This is a concern that has been raised by many parents who are unsure as to whether they are entitled to a refund in respect of those fees that they have already paid for the remainder of the school year.

Undertaking a review of the terms of any parent contract that you may have entered into with the school and/or nursery in question when your child first joined, is key to understanding the contractual obligations and liabilities imposed upon you and whether you will be entitled to claim a refund for all, or some, of the school fees that have been paid for the following term. Some independent schools and nurseries may not have envisaged a closure of this nature and whilst some are offering a reduction in fees in light of the un-planned closures, this is not the case across the board.

If you have taken out a school fees insurance policy that may provide you with some protection, however careful consideration of the policy wording and terms is required in order to assess whether you will be entitled to claim. In any event, you should firstly make contact with the school and/or nursery to establish how they are proposing to deal with the current crisis.

Understanding your legal position in light of the Coronavirus pandemic is crucial to determining your right to a refund.

If you require any legal assistance with regards to understanding the terms of a parent contract or insurance policy, or if you are in dispute with a school and/or nursery at present and require our assistance to draft a suitable letter on your behalf, then please do not hesitate to contact Christopher Buck, Associate Partner in the Commercial Services Department on 01908 660966 / 01604 828282 or email christopher.buck@franklins-sols.co.uk.