Linea’s Post

Longstanding practice not a custom and term of contract A work arrangement that had been in place for at least 12 years and had some certainty, was held not to be a term of employment established by custom. The employer had resisted the arrangement being a term of the collective employment agreement. In Bhamji V Chief Executive of the Department of Corrections [2024] NZERA 70 the ERA noted: "The law recognises terms implied into employment agreements by custom and practice however, they may be difficult to prove. To establish an arrangement as a custom the following criteria must be met: (a) have acquired such notoriety that the parties should be taken to have known of it and intended it should be part of their contract; (b) be certain; (c) be reasonable; (d) be proved by clear and convincing evidence; and (e) not be inconsistent with any express term of the contract." In many cases, what is considered a term through custom and practice may be merely a "privilege" and not a term and condition of employment.

An important reminder from the BC Supreme Court on the perils of a "two-step offer" when hiring new employees. It is advisable to avoid the two-step process, whereby an employer provides a prospective employee with a summary offer of employment to accept (either verbal or in writing) and only later provides a comprehensive employment agreement for the employee to sign. The issue is that without clear and unambiguous language, a court may not enforce the second agreement because the employee had already accepted the initial offer of employment. Ideally, offers of employment should be communicated in a single, formal written employment agreement containing all the terms and conditions of the employment.

💡Employers...If you are contacted by ACAS in respect of an employment dispute, this is the first sign that you are facing a potential tribunal claim because employees must go through what is known as pre-claim conciliation before they submit tribunal papers. The employer doesn’t have to engage with this process, but it is still vital to speak to Avensure (https://buff.ly/3JISBT2) as soon as ACAS makes contact with you, as we may be able to use pre-claim conciliation to prevent a claim from proceeding to an Employment Tribunal.

💡Employers...If you are contacted by ACAS in respect of an employment dispute, this is the first sign that you are facing a potential tribunal claim because employees must go through what is known as pre-claim conciliation before they submit tribunal papers. The employer doesn’t have to engage with this process, but it is still vital to speak to Avensure (https://buff.ly/3JISBT2) as soon as ACAS makes contact with you, as we may be able to use pre-claim conciliation to prevent a claim from proceeding to an Employment Tribunal.

The case discussed in our latest article presents a very good example of why two-step offers of employment should be avoided

The begining of the employment relationship, it generally exists from the moment an offer of employment is made and accepted(even verbally, as long as one can prove the offer was made and accepted). The above is true even if the employee has not physically started working. An accepted offer of employment constitutes a legally binding contract. This means the employee is protected by labour laws from the time of acceptance, even if they haven't started working, by extension, If an employer revokes an accepted offer, it could be considered unfair dismissal. It's important to note that while the latter is the general rule, specific circumstances might influence whether revocation is considered unfair dismissal; For instance, if there are conditions or contingencies attached to the offer, the relationship might not commence until those conditions are met. #EmploymentLaw #LabourLaw

Don't act like an Ostrich! Whenever you engage in a judicial process, either through the Courts or The Employment Tribunals, you are engaging in a process which needs to be taken seriously.   Nothing good can come out of an approach where you "ostrich yourself” and put your head in the sand and hope it will all go away.   Costs orders in Employment Tribunals are not common but if a Claimant fails to comply with directions and orders made by the Tribunal, and fails to attend a Case Management hearing, then they can have no complaints about what then happened. Their case was struck out in their absence.   The successful Respondents subsequently sought an order for costs. Inexplicably the Claimant did not respond again, not even to volunteer details of any inability to pay an adverse costs order, apparently ignoring the reality of the situation. That has resulted in a £7200 costs order made in their absence.   An interesting judgment briefly summarises the law and provides helpful case references.   See attached https://lnkd.in/erhYUumq

⚖ Did you know that there were more than 7,500 applications to employment tribunals in the final quarter of 2023? In that same quarter, more than two-thirds of the disputes (68%) had already been resolved by Acas early conciliation. This will probably be a better outcome for you than at a tribunal, but it does not mean that it will not cost you. 📜 When you are running an SME, being summoned to an employment tribunal is always a risk. And this risk is going to get greater under the new government’s employment law changes.  To learn more on this topic, check out our latest blog: https://lnkd.in/eETfSYUB #employmenttribunals #smes #hradvice