One of my employees has not returned his contract signed. What should I do?

This is not as serious as you may think.

There is a concept in Employment law of “custom and practice” which overrides anything written. If you have changed someone’s terms and conditions of employment and they have not signed it, but also they have not protested in writing that they are not going to accept it, then under “custom and practice” after several months of working to the terms of the contract and taking the salary, they are deemed to have accepted the contract and any changes. They can’t turn around a year later and say that they are not going to accept it, because by then it is too late.

This can also work the other way round of course. If you have something written in your contract, for example 30 minutes lunch break, and the custom and practice is actually 45 minutes, then if you try to enforce the 30 minutes, it will be seen as a change to their terms and conditions. The only thing you can then do is negotiate or “consult” with your staff for them to have a shorter lunch break in return for something else, for example an extra day’s annual leave.

Make sure that your contracts reflect the reality of working in your company rather than the theory!

If you do change the contract, and the employee is not in agreement, then they must make it clear that they’re working “under protest” and that they don’t accept what’s being imposed on them. The result is that they remain in employment but can still sue you because, effectively, you’re in breach of contract. The employee can’t work under protest forever: how long they can do so varies depending on the circumstances of each case.

If an employee refuses to sign, despite your best attempts, then you can either allow them to continue on their present terms and conditions, or dismiss them and re-engage on new terms (if you have consulted fully then this is unlikely to be considered unfair dismissal).

Ideally however the contract should be signed, for peace of mind, and this is what Gap HR does – we sit down with your employees, go through the contract and explain it to them, deal with any objections and get them to sign it.