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How I Draft the Contract of Employment-Step By Step - YouTube
Channel: Terry Gorry Solicitor
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in this video I want to take a look at
how I draft the contract of employment
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for small business owners small
employers who contact me on a regular
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basis for conflicts so I'm going to take
you through my contract and the thought
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process and the important things that I
see in the contract a lot to be careful
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for or watch out for okay so we'll start
here this is essentially my template
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conflict this is my starting point so
clearly the contract should be issued on
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the letterhead containing the name and
address of the employer
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at the outset then you're going to
address your letter your challenging
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conditions letter to the employee and
you're going to send it out and
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duplicate once you're satisfied with it
and the employee is going to sign two
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copies and you're going to take one copy
back and then both of you houses have a
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signed copy of the contract of
employment this contract will also keep
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your right in terms of your obligations
on to the terms of employment
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information Act of 1994 which is the
statutory obligation you must do this
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you must give employees a written
statement of certain terms and
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conditions of employment within two
months of starting the job so you
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obviously address your your letter your
terms and conditions letter to the
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employee and you set out here the name
of the the legal entity that is the
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employer so I could be a sole trader it
could be a partner it could be a limited
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company you need to be careful about
that they're in this force for a
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paragraph there's a line here at the end
which are two lines at the end which I
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would strongly recommend and you'll see
here it says for the avoidance of doubt
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I'm gonna highlight this for the
avoidance of that these documents are
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not contractual and can be amended under
a place of claims time of the discretion
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of I'm referring there two copies of the
policies and procedures I need to start
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handbook will be given to the employee
under separate cover but I am
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stipulating that those documents the
staff handbook the relevant policies
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policies and procedures are not actually
part of the contract and are not
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contractual now have a separate business
or a separate video or other about
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whether the staff handbook should be
contractual or not take a look at it on
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youtube you'll see why I don't recommend
that it's contractual and you can see
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why then I am stipulating here that for
the avoidance of doubt these documents
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that is the contract or the staff
handbook is not contractual and can't be
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amended under or a place from time to
time so I'm saying here that this letter
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and bonney's the entire agreement and
understanding between employer and
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employee so today for employment and
that's going to be here
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if the employee has started already
you're gonna put in the proper
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commencement date of the enjoyment if
the employee is going to start with you
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in the next week or month or so then
obviously put in the correct date as
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well now you're going to have a clause
here I would strongly recommend it
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subjective science actually completion
of the probation period specified below
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that's very very important I recommend
very strongly that you have a probation
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period of at least six months and that's
extended but it should be extendable to
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eleven months that's in relation to a
panel conflict you can also have a
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probation period in relation to a fixed
term conflict but there are two types of
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fixed term contracts one is for a
specific term for example six months or
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12 months or two years or indeed five
years the other is what's called a
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specific purpose contract this is a
contract for the specific purpose of
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doing something so a person could be
working in your business or in your
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school or whatever for the specific
purpose of covering for somebody on the
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maternity leave for example likewise you
could have a specific purpose conflict
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for the purpose of a particular
construction project or for a building
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project or for something of that nature
in other words it's got a specific
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objective or a specific purpose at the
contract only lasts for as long as that
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purpose is there he could be as a say
maybe roadworks or building a big rage
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or something of that nature once the
object is satisfied and achieved the
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contract is at an end as I said is a
fixed term contract and that's for a
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specific duration of time it could be
six months it could be six years so
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that's what you need to put in there if
you are going for a fixed term contract
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one of those conflicts otherwise you're
looking at a permanent contract provided
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the person passes the probation period
you'll see here as well as something
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that's important which is in my contract
that is a statement of the unfair
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decisions that will not apply to this
initial consisting only of the expiry of
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the term or assessor of the purpose
specified in this clause in other words
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if the contract is a fixed term contract
for 12 months
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the very fact that the 12 months comes
to an end means that the contract is
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over and it will not give rise to an
unfair dismissal claim in other words
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the contract has simply expired in
accordance with the terms okay the next
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thing then is your appointment is so you
could put in there a solicitor
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secretary receptionist retailer systems
support staff or whatever your job
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description is attached we show you the
job description there at the end
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essentially at the end you put in a job
description setting out the main bullet
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points I would suggest of the
responsibilities and tasks involved in
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the job the location clause you want to
stipulate or set set out exactly where
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the person is going to be locators and
you're also going to have to stipulate
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if they are going to have to perform
their duties away from the premises from
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time to time so you know they may have a
job that will require some travel or
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they may have a job or you may want them
to travel to different branches of your
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business around Dublin around Leinster
or wherever it's important or that you
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put the location in relation to the job
in the contract it's also important that
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you put in a clause providing for
geographical flexibility in other words
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that you can be flexible or that the
employee will be flexible in love in
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relationship locations of work to meet
the needs of the business so that's
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important location this is the
probationary period it's one of the most
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important clauses I believe in a
contract employment especially every
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giving one to a person for the first
time I would recommend a six-month
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period and that should be extendable to
11 months and I would also recommend
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that it states quite clearly that during
the probation period the only notice the
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person employee is entitled to is one
weeks notice I have seen contracts where
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they forget about the probationary
period notice period and the contract
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itself will then have three months
notice
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and after a mortix clear if the employee
is not going to work out and then the
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employer is then stuck with the three
months nor his period even though the
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employee may only be there for a month
or two months or three months and even
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though the
terminators at during probation they
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have left out the provision for one
weeks notice in the probation period
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then they're stuck with the general
notice period in the contract that could
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be a month or three months the hours
have worked and it's set out here if
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it's a retail business that's important
to it's an office obviously that's
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important so you should set out the
opening hours of the business and you
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should also set out the situation in
relation to overtime
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he's the person's going to get paid a
normal rate for overtime are they going
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to get time and a half maybe double time
and or is to no overtime payable in
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respect of the position it may be a
salary job it may be you know sort of
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understood or certainly made clear for
the contract that over time will not be
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payable but you need to make that clear
at the outset because we don't then in
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the event of a dispute ie a person has
the contract for 40 hours a week in
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their meet the end of doing an extra
hour - every day after a period of time
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you get very frustrated and disgruntled
and they would be looking to bring some
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sort of the claim perhaps for the extra
hour world in the normal course of
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events quite frankly they are title to
be paid for the work but if they're on a
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salary and if the contract says you're
not going to get paid for overtime well
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that's fairly definitive
saturdaya rate of pay then should be
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included in your contract as well so you
should set out just you know how often
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they're going to get paid whether it's
weekly monthly it's a etc and one thing
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you should put in if they are a retail
worker for example or on a relatively
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low wage you should print up a reference
page for the purpose of the minimum
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national minimum wage is this is
actually a requirement requirement in
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the contract of employment that you put
in at a reference period you also have a
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clause here you'll see where the company
or the employer either
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reserves the right to deduct from your
wages on it so much due to it so you
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know this might include overpayment of
wages or something of that nature
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I knew leaved and that's governed by the
organisation of working time I said 1997
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however your employment may provide more
generous
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enjoyment or any relief provisions if
that's the case it should be stipulated
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here one thing that you might not hear
is this except in special circumstances
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no more than ten days may be taken at
any one time so 10 days leave with
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essentially two weeks so a lot of
employers will it's just that the
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employee chopping off more than two
weeks another thing that you may
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consider it's a certain number of your
onion leaves it's never taken or maybe
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designators states that you must take us
holidays when the office is closed
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during the Christmas and Easter holidays
you'll be given notice of these days and
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events so if you're the employer you
might want to consider this and just see
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if there are any particular dates that
enclose for example Good Friday or
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holidays Easter holidays at Christmas or
whatever if you want them to be
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designated as holiday dates where you
need to specify it and set it out there
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the situation in relation to paint
general is that there's no obligation on
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the employer to provide a pension
however the employer should make
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provision for payment by the employee
into a PS or a this is a private pension
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situation for the employee so you should
make provision for allowed the employee
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facilitated payments into a PS PRSA of
their choice and you should give them a
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list of approved providers if they
request and you can get a list of
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approved PRSA providers online anywhere
now the okay locally if you are an
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employer who operates a pension well
then you just stipulate or set out here
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what's the situation they are what are
entitled to what payments will be made
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etcetera censor retirement age I would
strongly recommend that you have a
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retirement age in a contract if that's
going to be an issue for you you do need
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to specify it or set it out if you don't
well then you're going to have a
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situation where it may be very difficult
to get somebody who comes to a certain
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age and you want to for
intergenerational reasons etc promote
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younger people but if there's no
retirement age of the contract will
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there
in Irish law at the moment is king
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stand-in on 28th of March of 2018
there's no specified or particular
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retirement age unless you in the public
service or in a specific job provided in
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which the contract provides for a
retirement age illness then you should
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set out here what the situation is in
relation to illnesses you should sell
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out the reporting requirements etc such
now you may also have a start handbook
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and I would strongly recommend that you
have a hammer start handbook the staff
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handbook should specify in more detail
what the reporting requirements are in
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relation to illness how they report
etcetera etcetera and you should also
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set out if there is a sick paint scheme
what the situation is or how long it
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lasts for and so on and so forth or if
the reason the sick pay scheme you
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simply say that the company or the
employer does not operate a secret
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scheme and that is the legal position
you note you're not obliged but some
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employers do maternity parental adopt
upon forcement you leave and there are
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other statutory leaves as well again
details of these should be set out in
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the start handbook so I would recommend
it to the staff handbook and that you
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sell outdoors leave arrangements and the
teittleman's in the start handbook you
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should have a confidentiality clause as
well dealing with customers or clients
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of your business you know what any
information or details of those being
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disclosed to animals or any notes or
memoranda taken from the business you
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also may want to put into your contract
restrictive covenant restrictive
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covenant is something that stops
somebody from setting up a business in
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competition with yours only working in
the same industry within a second
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separate or a certain geographical
distance for a specified time for
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example six months after they leave you
if you have a nail bar or if you have a
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hairdressers or something you don't want
somebody setting up two doors down the
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street after they've left you and
bringing you their clients with them you
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also don't want them carrying out work
at home for example in their own house
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member in the garage or a converted shed
or something and they're doing hair or
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to do it makeup or to do nails whatever
you need some protection for yourself
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now your restrictive covenant that is
your non-compete clause for when they
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leave the job must be reasonable so it
can't be completely la-la in terms of
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stopping them from working for you know
twelve months over the entire region of
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Ireland because people have a
constitutional right here in a living
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but you also have a constitutional right
and a common law right to protect your
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business but it does have to be
reasonable as to time allows to
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geography what area you're looking to
protect an important bunch of procedures
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will be those dealing with grievance
discipline bullying harassment sexual
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harassment etc again start handbook so
your three most important procedures
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grievance discipline and dignity at work
you also have a data protection clause
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here which stipulates that saying it by
saying this document you consent to the
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employer and maintaining personal data
about you or retaining it and this is
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getting much more strict with the
introduction of GDP or from a 2018 you
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cannot just rely on this simple signing
of a contract as consent you really need
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a more lawful basis for a consent from
the employee now you may well have that
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for example you do need to maintain
records of employees for the Revenue
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Commissioners for the Department of jobs
enterprise deployment and so on and so
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forth your statutory and legal
obligations but it's not an offer will
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not be enough at GTB or GDP or comes in
from a 2018 to simply get the employee
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to sign this and this gives you free
rein to do what you like with the data
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that won't be the case
this country's notice this clause here
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deals with the notice period in relation
to the termination of employment what it
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set out here is the statutory situation
you may require however your employees
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to give you more notice you may require
fortnight or a month or three months or
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something of that nature and will depend
on the nature of the job pay or
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termination then that's a relatively
straightforward sort of charge you title
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to pay calculator
once a week's salary Fridays work since
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you last paid plus any accrued holiday
entitlements changes to your terms
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employment this is important however
it's of limited value you are entitled
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to as an employer change the terms of
employment however those changes must be
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reasonable if they're not reasonable
you do need to negotiate the changes
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which are probably get them to sign up
towards where you then we'll ask the
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employee to sign here and you'll get
give them two copies and get from the
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sign board copies new take one back and
they take one back and in the event of a
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dispute then both parties will know
exactly where you stand down here then
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it's done description I would recommend
a number of bullet points 5 to 10 molar
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points selling out the main
responsibilities and duties associated
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with the law I hope you find this useful
if you do you might give with a thumbs
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up down below and if you need a contract
or staff handbook or whatever
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feel free to contact me and I'll be able
to give you a quotation for a contract
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in the staff handbook contract on its
own without a staff handbook is I
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wouldn't recommend I recommend getting
the staff handbook as well because a
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contract quite frankly it's going to
refer to the policies and procedures in
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your staff handbook and if you don't
have a staff handbook then your contract
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is going to look like the upper with
North laws as it were if you want to put
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all your policies and procedures in the
contract well then you're going to have
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a huge unwieldy document and your
policies and procedures are also going
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to be crunched contractual you don't
want that because you want to reserve
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the right to change them or add or
subtract as time goes on hope you find
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it useful given at the thumbs up down
below he knew thanks
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you
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