CASO I: MODIFICACION INTERNA TIPO INTRA 2

It is likely that most people providing work/services to a practice will be permanent employees. The benefits of this include the establishment of a long-term relationship between employer and employee based on a series of terms and conditions (see below), which engenders mutual trust and respect.

While a simple offer of employment, acceptance of it and ‘performance’ (turning up for work, doing what is requested and receiving payment) are all that is needed to establish a contractual relationship, it is highly recommended that the basis of this relationship should be set down in a contract of employment signed by both employer and employee. Employers should also be aware that, irrespective of anything specific that is written into a contract of employment, ‘custom and practice’, for instance leaving early on a Friday or the payment of a bonus on a regular basis, may be deemed a term of employment over time.

There are certain basic requirements that should be set out in a contract of employment (or alternatively in a ‘statement of terms’, as required by the Employment Rights Act 1996), including:

• Details of the parties – names, addresses, etc. • Job title/role.

• The date when the employment commenced/will commence.

• The date when the employment will finish, which will be the employee’s normal retirement date in most cases, but would be earlier in the case of, for instance, a fixed-term contract. Practices should be aware of current and imminent changes to the law governing retirement ages.

• The date for commencement of continuous employment; this will usually be the date of commencement, but may, at the practice’s discretion, include a period of previous employment with the practice or a related/ subsidiary practice.

• Details of remuneration – how much the employee will be paid, at what intervals and by what method.

• Hours of work, including lunch breaks, etc. Practices should be aware of the European Working Time Directive, which restricts the number of hours an employee can work, and rest periods during the working day. • Paid holiday entitlements, including arrangements relative to public

and bank holidays and, at the practice’s discretion, the period between Christmas and New Year.

• Payment, if any, for time off due to sickness.

• Notice required and conditions surrounding termination of employment, including arrangements for any probationary period following

commencement of employment, and any matters that might lead to summary dismissal.

• Normal place of work, and arrangements should the employer require working away from this location.

• Whether or not there are any collective agreements affecting the employment.

• Whether or not there is a ‘contracting out’ certificate in force for any pension scheme.

• Disciplinary procedures or details of where these can be found. • Procedure for dealing with any grievances.

The practice is advised to include, although it is not legally required to do so, terms and conditions relating to:

• Restrictive covenants, which will prevent a former employee from doing various things for a stated period following their departure from the practice – this will usually include approaching clients and ‘poaching’ of key employees. These clauses will not become operative until an employee leaves, or has served notice to leave, and will continue to have an effect for a period of time after leaving. These clauses apply mainly to senior employees, and legal advice should be taken regarding the extent to which they can be effective (there is legal protection for the employee against a former employer seeking to use restrictive covenants that will restrain the former employee from gaining normal employment). • Confidentiality. There may be a need to protect the practice against its

current and former employees breaching confidentiality agreements signed with clients and to protect the practice’s legitimate business interests. Clauses protecting this can remain operative in perpetuity. • Any arrangements for garden leave in the event of a (usually senior)

employee being asked to leave the practice before expiry of their notice period.

• Any arrangements for ‘pay in lieu of notice’ on leaving the practice and in the event of redundancy. Clauses of this sort are commonly called PILON clauses, and legal advice should be sought before including them, as they can have the effect of negating restrictive covenants.

• Intellectual property. The employee should indemnify the practice against their breaching a third party’s copyright in the carrying out of their work and should confirm that the intellectual property in what they produce while working for the practice automatically passes to the practice. • Any arrangements for overtime payment or confirmation that payment

will not normally be made for overtime working.

• Arrangements for the return of company property, such as mobile phones, keys, laptop computers, etc. on termination of employment.

The RIBA Employment Policy, which must be followed by Chartered Practices, requires staff training and CPD provision to be set out with the employee’s contract of employment.

Once a contract has been agreed, it should be signed by both parties, a copy handed to the employee and a copy retained within the employee’s personnel file.

The Data Protection Act 1998 is an extensive and complex piece of legislation that seeks to protect individuals from improper storage or use of personal data. Among other things it governs what data can be retained about an individual and how it can be used, and gives an employee the right to access their own personal records and request the correction of inaccuracies. The Data Protection Order 2010 has increased penalties for breach of the Act. A practice is advised to get specialist advice on what data can be stored on individuals, for what lengths of time and data storage methods.

The contract of employment can only be varied by agreement between the two parties, except as provided for within it: for example it would be usual that variations to salary and other benefits could be made upon written notice being given to the employee. Any changes requested by the company should be made the subject of a consultation period with the employee.

When a practice changes ownership, and there is a new employer, it is usual to transfer all contracts of employment. A ‘TUPE’ (Transfer of Undertakings – Protection of Employment) process must be initiated to either transfer

the contracts of existing employees over to the new company in their entirety or to negotiate revised terms. Such a negotiation is usually done on a collective basis and will, in certain circumstances, require the appointment of employee representatives who will interface with the practice management and report back to their colleagues.