It’s a new year, and I want to introduce some new policies and procedures for my staff. Can I just put these into force, or are there issues that I should be aware of?
If you do not intend the policies to be in the staff contracts (and thereby contractually binding) then, from a strict legal perspective, you can just put the procedures into force.
However, it may be appropriate to make some policies contractual, for example those relating to remuneration, expenses, working hours or post-termination restrictions. To implement such policies on a contractual basis, you should have evidence of each employee agreeing to them. Ideally, this agreement will be a signed document or email confirmation. An alternative approach is to explain in writing to each employee that the policies are contractual and will be deemed to have been accepted by the employee unless he or she notifies you to the contrary by a specified date.
Depending on their terms, there may be some difficulty enforcing new policies introduced after an employment contract was first entered in to. This is because, depending on the nature of the terms, employees may seek to argue that the contractual change was not supported by “consideration”, which is one of the elements that has to be present for a contract to be legally binding. To guard against this, you should try to explain the introduction of the policies as being in exchange for something of value to the employees, for example their next pay review.
Although not actually a legal requirement, and irrespective of whether the policies are to be contractual, a period of consultation before the new policies come in to force will almost always be sensible. This could take place with any trade union that you recognise, or an employee representative body if you have one.
Alternatively, consultation could take place with, or at least be offered to, employees on an individual basis. In practice, you can achieve this by sending all employees the policies in draft form with an explanation of when they are intended to come into force and the reasons for them, and then hold meetings as required with employees to discuss any queries or concerns. You should be prepared to take on board the feedback you receive from employees before you implement the policies, and even be prepared to amend them if appropriate.
There are a number of advantages to consulting employees before implementing the policies. If you recognise a trade union then failing to consult may be a breach of a collective agreement. Your employees are more likely to readily accept the policy if they have been consulted on it, particularly if it has a significant impact on the way they work or their benefits, and the consultation process may even result in changes which improve how the polices operate when they do come in force.
David Brown, associate, Simpson Millar LLP
XpertHR FAQs on policies and procedures