So the company I have worked for for the last nine months have issued us with a new contract for employment. When I started my employment with them I signed a contract with them, but in it there is no mention of them reserving the right to make amendments to the contract at any time - there is in this one.
Am I right in saying that for any changes in my contract of employment, that both parties need to be in agreement to them before they can come into effect, and what is the situation if I refuse to accept the changes they are trying to make, bearing in mind that I accept that I am bound by my current agreement?
They have also given us a Restrictive Covenant Agreement, which has the usual non disclosure agreements guff in it, along with the non solicitation of clients ect... However, they've also added in that I may not be employed either directly or indirectly by a client of theirs for a period of 12 months after cessation of employment with them. This is something I don't agree with.
As this agreement was never given to us at the start of our employment, are we within our rights to refuse to accept it, or certain elements of it on the grounds that we do not agree with these changes in our terms of employment since there was no clause reserving the right to make such amendments in the initial, currently valid contract?
Any help would be appreciated.
You always have the right to refuse to sign a new contract.
But, taking an extreme view, the company also has the right to terminate the old contract leaving you without a job. (Quite easily as you have been with them < 1 year)
But there is a lot of middle ground here. You should discuss this with you employer. But beware, making a big deal of this will flag them to the fact that you can see yourself leaving the company in the future and may get them thinking that you may be considering leaving soon....
Is this a change in all employees contracts? This is common enough when the law or industry practice changes, if you are with a big company they periodically review the default contract clauses with legal or HR consultants.
Are you a key employee? If so this may be a clause that you can negociate some monatary benefit from, If you are restricting your ability to find a job in future then you should be compensated for agreeing that restriction, either in terms of more money during your employment or possible that they will pay you during your gardening leave 12 month period.
How you react to this change will depend on many things:
- How your co-workers react.
- Your position within the company.
- Industry practice in your field
All of the rest of the guys are reacting the same way. There is no precedent in our industry for a protective covenant in respect of employment for a client. No one in the industry ive spoken to have never heard it
Would the Bosnan ruling have set a precedent here, under the freedom of movement of workers? Or would Article 23.1 of the Universal Declaration of Human Rights be relevent here?
I do not agree with the changes in my conditions of employment, and as I currently have an open ended contract am I not entitled to continue with it?
Not strictly true, especially on the termination part. If you don't agree to the changes, especially in terms of both restrictive covenants, changes to pay, or terms of employment, then the management can't do anything. If they dismiss you, even though you have been with the company less than one year, you can quite legitimately claim unfair dismissal, if it is over a contract. You could also take them to court for breach of contract and loss of earnings.
However, I think in this case, the best situation is that the employees and the management discuss a compromise. I would suggest that the employees meet, either during work or afterwards, to discuss what would be and not be acceptable to you, and present your case to management. Alternatively, contact your union.
PS. If you go into a meeting and start quoting either the Bosman ruling or the Universal Declaration of Human Rights (not a part of Irish law, purely aspirational), you are likely to be laughed out of it. Far better to go in with a knowledge of both what is in your contract, what you can live with, and what can and can't be changed without your agreement and consent. Look here for more information.
I do not believe the non compete clause has ever being successfully upheld in Ireland (or even the EU) unless fully paid gardening leave has been implemented.
I your company originally from the US ? I know it has been upheld on that side of the pond and it is standard in their contracts.
If you need the job more than they need you as an employee ,then fighting this can be a mistake as they have a very easy get out clause by letting you go.
As mentioned earlier I do not think you can successfully stop this contract going through, but you could negotiate something for yourself in it to make the signing easier.
Do I need them more than they need me? Six of one really. In theory if the job changes don't suit me and I stand to lose out as a result then there is the potential to move to another employer from this one working for the same client, on similar wages and better conditions. Hence my concern over the restrictive covenant they want me to sign. If I signed it and did move, could they legally stop it, considering I have the right to work wherever I choose?
They're not from the us, no and they're not in the habit of letting people go either. Reliable people with aptitude in this industry are hard come by on the wages and even if someone was to hand in their notice they would be bending over backwards trying to get you to stay.
I'm pretty sure you don't have to agree to any changes in the contract, and if in such a case you did and were fired you would more than likely have a strong case for unfair dismissal.
Additionally the proposal in the new contract whereby they can change the terms at any time doesn't sound right, and even if agreed or was already in place, it probably wouldn't stand in the case of a dispute over changes to certain terms of employment.
Also the restrictive covenant is against your right to earn a living and is usually only ever in place in areas where for example your involved with sensitive information important to the company and its competitiveness or research and development etc.
As someone mentioned it has never been upheld in Ireland except where the employee was paid for such period of time.