Employer has no contract for me

Leinsterfan18

Having worked a number of years at my company, I requested a copy of my contract, HR can't find it and said they've nothing on file and need to do up a new one and send it to me.

I genuinely cannot remember whether I signed one at the time, I'd be shocked if I didn't.

My question now is, should I sign the new contract or not? New management have made the place a lot harder to work in the last 18 months, my concern is that the new contract will be far stricter than the contract i should of had when I started.

Any advice would be much appreciated.

Gravelly

Leinsterfan18 wrote: »

Having worked a number of years at my company, I requested a copy of my contract, HR can't find it and said they've nothing on file and need to do up a new one and send it to me.

I genuinely cannot remember whether I signed one at the time, I'd be shocked if I didn't.

My question now is, should I sign the new contract or not? New management have made the place a lot harder to work in the last 18 months, my concern is that the new contract will be far stricter than the contract i should of had when I started.

Any advice would be much appreciated.

If they can't produce the contract you originally signed (if you signed one), they are in a bit of a precarious position - they certainly aren't in a position to force you to sign a contract that is stricter (though stricter than what is the question!). If there are any elements in the contract you are asked to sign, you can simply say "Well I remember specifically that my original contract didn't say that".
I'd make sure the contract I sign is the contract I want to sign - and make sure it's backdated to when you started.

Steve

Did you not get a copy of the original contract?

Odd that both sides cannot find a copy?

OMM 0000

You would have been given a copy of the contract when you originally signed it. That's one of the main points of a contract - you both agree to a set of rules, and you both keep a signed copy of those rules.

Your situation is a bit weird.

I'm not sure what's the advantage of doing what you're doing.

Leinsterfan18

Steve wrote: »

Did you not get a copy of the original contract?

Odd that both sides cannot find a copy?

Its going back a number of years, it looks like no contract was given to me and I cannot remember with 100% certainty that I signed one.

Leinsterfan18

OMM 0000 wrote: »

You would have been given a copy of the contract when you originally signed it. That's one of the main points of a contract - you both agree to a set of rules, and you both keep a signed copy of those rules.

Your situation is a bit weird.

I'm not sure what's the advantage of doing what you're doing.

See my point below to Steve.

What if I wasn't given a contract and nothing is signed?

granturismo

Gravelly wrote: »

... If there are any elements in the contract you are asked to sign, (that are stricter) you can simply say "Well I remember specifically that my original contract didn't say that".
I'd make sure the contract I sign is the contract I want to sign ...

This.

OMM 0000

Leinsterfan18 wrote: »

What if I wasn't given a contract and nothing is signed?

Well the law would still apply to you both.

The big difference really is you wouldn't have a one month notice period. The statutory notice period is one week.

Steve

Leinsterfan18 wrote: »

Its going back a number of years, it looks like no contract was given to me and I cannot remember with 100% certainty that I signed one.

I wouldn't sign anything unless it is to your benefit, you have no obligation to do so.

Your employer f'd up, it's their problem not yours.

If they demand you to sign (which they can't) you can tag on your own demands such as a pay rise or pension or similar but be careful, they probably have a legal professional telling them they need a signed COE.

my3cents

Perhaps the OP can ask a work colleague who has been there a similar amount of time if they have a copy of their contract you can have a look at, that might give you an idea if the new contracts are any different.

Steve

OMM 0000 wrote: »

Well the law would still apply to you both.

The big difference really is you wouldn't have a one month notice period. The statutory notice period is one week.

If the OP is employed for several years (as claimed) then contract or not, the same applies.

Masala

I would be worried if u refuse to sign a new one. If u have no contract.... u have no guarantees. It covers u on key point like retirement, probabtion, dismissal etc. Better to have it up your sleeve signed when the **** happens.

Leinsterfan18

Masala wrote: »

I would be worried if u refuse to sign a new one. If u have no contract.... u have no guarantees. It covers u on key point like retirement, probabtion, dismissal etc. Better to have it up your sleeve signed when the **** happens.

If I am to sign, I'd be wanting the older contract from when I joined, I wouldn't expect to have to sign a current updated contract that suits the employer more, I don't feel I should be penalized as its an error from my employer, the HR dept to be exact.

Masala

Leinsterfan18 wrote: »

If I am to sign, I'd be wanting the older contract from when I joined, I wouldn't expect to have to sign a current updated contract that suits the employer more, I don't feel I should be penalized as its an error from my employer, the HR dept to be exact.

Agreed.... make sure the start date is correct etc.

And watch out for clauses that are date specific... ie must pass driving test within 6 months. Especially if you haven't even started to take lessons!!!

OMM 0000

Leinsterfan18 wrote: »

If I am to sign, I'd be wanting the older contract from when I joined, I wouldn't expect to have to sign a current updated contract that suits the employer more, I don't feel I should be penalized as its an error from my employer, the HR dept to be exact.

I'm not sure if the law works this way.

If you never got a written contract, and you're being offered one now, I would think the new contract becomes the contract.

I'm not really sure how the new (and only) written contract can be the same as a non-existent previous written contract.

I understand you're saying there's a chance there was a previous written contract, but you've lost it. That means you have no proof of the details of your previous contract, so you cannot make demands for something which doesn't exist.

Do you understand what I mean?

EDIT: Oral contacts are real (https://businessandlegal.ie/tag/oral-contract) but my issue with all this is the fact that nothing is written down, so your position is very weak.

Peregrinus

There absolutely is an existing contract of employment. It just hasn't (as far as we know) been set down in writing, which means that establishing its exact terms will be difficult.

Your employer is in a tricky situation here, since he is supposed to have provided you with a written statement of your terms of employment within two months of commencement. Without being able to produce a copy of this it will be hard for him to prove that he complied with this obligation. In theory you can recover up to four weeks wages from your employer for his failure to comply with this obligation. But that's not really the issue here; more to the oint, in the event of a dispute over the terms of your employment, the fact that he failed to document the terms, or at least to keep a copy of any document he did create, will tend to go against him.

As others have suggested, talk to someone who was recruited at about the same time you were and to a similar grade, and see if you can get a copy of their contract of employment from them. (If nec, they can ask HR for a copy of their contract - needn't say why they are looking for it - and pass it on.) Apart from obvious appropriate differences - e.g. different job titles, different salary, different duties appropriate to the different position - there's a good case for saying that, in default of better information, your terms of employment should be presumed to be similar to theirs.

Then you'll know if any new contract offered to you is materially worse. If it is, you can ask to have the offending terms amended to bring them into line with the presumed terms of your current unwritten contract, as inferred from your colleague's written contract.

Esse85

OP, what made you ask for a copy of your contract only now and not earlier as you've been with the company a number of years you say?

Is a small or large company? Sometimess smaller ones can be a bit more slack on this I've found.

3DataModem

There is very little benefit to an employee of signing a employment contract, apart from some very specific situations.

If there are aspects of your terms that you want to ensure are in writing (e.g. entitlement to more leave than usual, or access to parental benefits, or overtime payments etc) then just the issuing of the contract to you by the employer is enough, as you then have the terms in writing. Signing and returning does nothing for YOU.

Let them issue it, take a look, chat to a lawyer (if it's worth about €200 quid to you, or you could find a cheaper lawyer and *really* waste money!) and then keep a copy of it. They've operated long enough without a signed contract on file, so another few months or forever won't make a difference.

Masala

3DataModem wrote: »

There is very little benefit to an employee of signing a employment contract, apart from some very specific situations.

If there are aspects of your terms that you want to ensure are in writing (e.g. entitlement to more leave than usual, or access to parental benefits, or overtime payments etc) then just the issuing of the contract to you by the employer is enough, as you then have the terms in writing. Signing and returning does nothing for YOU.

Let them issue it, take a look, chat to a lawyer (if it's worth about €200 quid to you, or you could find a cheaper lawyer and *really* waste money!) and then keep a copy of it. They've operated long enough without a signed contract on file, so another few months or forever won't make a difference.

Jeez... don't know about that!! Without a contract - he could be out on his ear!! He has nothing to say what his terms are. Say employer wants to let him go.. employer could always say he was on a Fixed Term Contract and he cant prove it otherwise. If there are redundancies coming up,,he could be first to go as he has no legal contract.

granturismo

3DataModem wrote: »

... chat to a lawyer (if it's worth about €200 quid to you, or you could find a cheaper lawyer and *really* waste money!) and then keep a copy of it...

Its a solicitor in this country.

3DataModem

Masala wrote: »

Jeez... don't know about that!! Without a contract - he could be out on his ear!! He has nothing to say what his terms are. Say employer wants to let him go.. employer could always say he was on a Fixed Term Contract and he cant prove it otherwise. If there are redundancies coming up,,he could be first to go as he has no legal contract.

Just because the contract is not signed and returned by the employee does not mean that the employee cannot prove otherwise using the unsigned contract.

3DataModem

granturismo wrote: »

Its a solicitor in this country.

I was using the general term for solicitor or barrister.

OP, of course while a barrister cannot be engaged directly by the public, you might know one who has been involved in employment law and a chat could be helpful.

my3cents

Masala wrote: »

Jeez... don't know about that!! Without a contract - he could be out on his ear!! He has nothing to say what his terms are. Say employer wants to let him go.. employer could always say he was on a Fixed Term Contract and he cant prove it otherwise. If there are redundancies coming up,,he could be first to go as he has no legal contract.

Thats rubbish we have employment laws that mean an employee has basic rights contract or no contract. His employer can't say he's on a fixed term contract if he hasn't signed one.

Leinsterfan18

Esse85 wrote: »

OP, what made you ask for a copy of your contract only now and not earlier as you've been with the company a number of years you say?

Is a small or large company? Sometimess smaller ones can be a bit more slack on this I've found.

My role changed 6 months ago, not job title, extra responsibly, bigger sales accounts that take up more time, I haven't gotten a pay increase, I then requested a pay review a month a go, its been fobbed off and I'm told its with senior management, I get the impressions they are trying to drag it out etc if I get a fair wage I'll hang around, if not, I want to know so I can assess my options.
I then wanted to check my contract to review terms/conditions and alas I discovered I don't have one.

Company has over 700 employees so not like there's only a handful of employees.

Masala

my3cents wrote: »

Thats rubbish we have employment laws that mean an employee has basic rights contract or no contract. His employer can't say he's on a fixed term contract if he hasn't signed one.

Similarly - an employee cant say he has a full time contract when he hasn't signed one. Works both ways.

3DataModem

Masala wrote: »

Similarly - an employee cant say he has a full time contract when he hasn't signed one. Works both ways.

This isn’t true. I consulted a solicitor on this very topic last year.

Leinsterfan18

Masala wrote: »

Similarly - an employee cant say he has a full time contract when he hasn't signed one. Works both ways.

I don't think that's correct as the employer is the one obliged to provide and issue a contract, the employer has failed to comply here, the employee hasn't done anything wrong.

my3cents

Leinsterfan18 wrote: »

I don't think that's correct as the employer is the one obliged to provide and issue a contract, the employer has failed to comply here, the employee hasn't done anything wrong.

An employer does not have to issue a contract that both parties sign however if there is no signed contract the employer is supposed to provide a statement of terms.

daheff

Leinsterfan18 wrote: »

If I am to sign, I'd be wanting the older contract from when I joined, I wouldn't expect to have to sign a current updated contract that suits the employer more, I don't feel I should be penalized as its an error from my employer, the HR dept to be exact.

Well is it an error from your employer, or you, or both.

Employer has a duty to keep adequate records. So do you.

Have you checked old email addresses that they may have emailed a copy to you prior to starting?

This could be a good time to sign an updated contract with better terms/conditions (Eg more salary/bonus/time off etc).

Unless you can find a signed/unsigned copy that was given to you previously, how would you know if the contract they put in front of you is better/worse than you had when you started? While looking at other employees contracts would give you an indication, they would not really be applicable as everybody's contract is stand alone.

I'd suggest going into this with eyes open, but also being open to signing a contract (it would make any future employment contract issues easier to substantiate)

Leinsterfan18

my3cents wrote: »

An employer does not have to issue a contract that both parties sign however if there is no signed contract the employer is supposed to provide a statement of terms.

https://employmentrightsireland.com/tag/employment-contract/

Terms of Employment (Information) Act, 1994
The Terms of Employment (Information) act, 1994 sets out the basic terms of employment which the employer must provide to the employee in a written form within 2 months of starting the employment.

Failure to do so will leave the employer open to a claim from the employee, pursuant to the Terms of Employment (Information) act, 1994. The maximum amount that can be awarded to the employee is 4 weeks’ remuneration.

The claim must be brought to the Workplace Relations Commission (WRC) and is a straightforward win or loss situation-that is, it is clear whether there has been a breach of the legal obligation or not.

Esse85

OP it sounds like you know what you want here....a better salary, possibly better benefits, nothing wrong with that, we all want the best deal we can get, especially if your workload has increased and you've been given extra responsibilty without extra reward.

Therefore use this situation as leverage, state your happy to sign a contract but you want an increase in salary based on above^^ Do your research, know your numbers. If you don't ask, you don't get.

See how you get on, if they don't budge say you won't be signing any contract your unhappy with and seek professional advice from someone qualified to give it in employment law.

ted1

Leinsterfan18 wrote: »

If I am to sign, I'd be wanting the older contract from when I joined, I wouldn't expect to have to sign a current updated contract that suits the employer more, I don't feel I should be penalized as its an error from my employer, the HR dept to be exact.

But you don’t have an old contract. Therefore there is none. So either agree with the new one or prepare to move on.

Leinsterfan18

ted1 wrote: »

But you don’t have an old contract. Therefore there is none. So either agree with the new one or prepare to move on.

Is that your opinion or are you quoting factually?

my3cents

ted1 wrote: »

But you don’t have an old contract. Therefore there is none. So either agree with the new one or prepare to move on.

You don't need a contract. There is no law saying that you have to have one only a law that states the company must provide a statement of terms that you don't need to sign.

If you are being paid a wage you are in employment and protected by law.

ted1

my3cents wrote: »

You don't need a contract. There is no law saying that you have to have one only a law that states the company must provide a statement of terms that you don't need to sign.

If you are being paid a wage you are in employment and protected by law.

But are you in a fixed term or permanent?

my3cents

ted1 wrote: »

But are you in a fixed term or permanent?

Obviously if its a fixed term contract then its in the employers interest to get a contract signed otherwise its permanent. The employer can't prove its a fixed term contract

The definition of a fixed term employment is that there is a contract with a start and and end date. No contract and its not fixed term.