Do you have an Employment Agreement?
Much of this depends on exactly what has happened. For example, has the employee actually been provided with a written employment agreement? If so, has the employee ever raised any issues with that employment agreement? If not, have the parties continued as if the employment agreement was in force in any event?
In a recent situation we were involved in, an employee had been provided with a formal employment agreement and had raised an issue with one of the clauses which had never been resolved. The parties continued on as if the rest of the employment agreement applied. In that case, in all likelihood the rest of the employment agreement could have been binding and enforceable, although obviously there was a question mark over the one particular clause itself.
One common situation is where an employee fails to sign an employment agreement but does not appear to raise any issues with it. In that case, we recommend that employers give formal notice that if the employment agreement is not returned signed by a certain date then it will be taken as being accepted by the employee and will be binding on them despite the fact it is not signed.
The best way to avoid this situation is to ensure that any new employees sign employment agreements before starting work. This not only ensures that there is a signed employment agreement in effect at all times (which is a statutory requirement) but also ensures that any employees starting can be subject to a trial period. This is because a trial period cannot be enforced against an employee who has previously worked for an employer, and that includes employees who start work without signing a formal employment agreement at that time.
We are happy to assist with any queries that employers may have in this situation.
The above information is of a general nature only. You should contact our firm for advice relating to your specific circumstance.