Job Description/Contract

[David.Dewar]

I confess I don't know the answer to this, but someone might - I hope.

 

Where a Job Description has been issued in connection with the recruitment of a DofM (where subsequently a contract is signed) does the Job Description hold any force alongside the contract? Or is it perhaps to be regarded as, at best, wishful thinking?

[MusingMuso]

I confess I don't know the answer to this, but someone might - I hope.

 

Where a Job Description has been issued in connection with the recruitment of a DofM (where subsequently a contract is signed) does the Job Description hold any force alongside the contract? Or is it perhaps to be regarded as, at best, wishful thinking?

 

 

==================================

 

 

Employment contract law is quite involved, and essentially operates in three distinct ways: verbal, written and what could be described as "normal custom & practice" associated with a particular job.

 

The written contract is by far the easiest to understand and act upon, but even then it can be varied or rescinded at any time, with adequate notice of intent, with which the opposite party may agree or disagree. So far as I know, that works both ways, but if the two sides cannot agree, then a contract can be terminated.

 

It's all a bit shadowy, because I seem to recall that employment contract law springs out of the laws pertaining to "master & servant," which does tend to favour the master.

 

Even where a written contract doesn't exist, a firm contract of sorts is in place, on the basis of verbal promises and also on the basis of what the worker (servant) normally does in the execution of his/her duties; the basis of "custom & practice."

 

Where my knowledge fails, is how all this applies to part-time working, which I'm afraid is beyond my management experience; so perhaps someone else can answer this.

 

So, what it all means, is that when a "servant" is "hired" to do a job, then at the outset, there will be discussion of what the job entails (a job description), and I would think that any court would recognise the validity of that as either a part of the contract or in the form of "reasonable" expectation.

 

In other words, if you sign up to play the organ, and they hand you brush and shovel on your arrival, you have fair grounds for complaint or even constructive dismissal; the latter being based on the assumption that you are prevented from doing what you were hired to do. So yes, the job description qualifies the terms of the contract.

 

However, at any time, one or other party may vary the contract with due consultation, and the usual thing is for the "master" (the employer) to point out the change to the contract, discuss the implications of the new terms, and then to get the "servant" (employee) to sign a revised contract. That way, no-one is in any doubt, and things remain legally (and morally) sweet.

 

In effect, it comes down to the meanings of trust, promise and reasonableness, as would be understood by the "reasonable man" sitting on the top deck of the Clapham Omnibus.

 

Of course, there's a lot of sharp practice which slips by without ever being challenged, but that's a another story.

 

MM

[Ian Ball]

==================================

 

 

Employment contract law is quite involved, and essentially operates in three distinct ways: verbal, written and what could be described as "normal custom & practice" associated with a particular job.

 

The written contract is by far the easiest to understand and act upon, but even then it can be varied or rescinded at any time, with adequate notice of intent, with which the opposite party may agree or disagree. So far as I know, that works both ways, but if the two sides cannot agree, then a contract can be terminated.

 

It's all a bit shadowy, because I seem to recall that employment contract law springs out of the laws pertaining to "master & servant," which does tend to favour the master.

 

Even where a written contract doesn't exist, a firm contract of sorts is in place, on the basis of verbal promises and also on the basis of what the worker (servant) normally does in the execution of his/her duties; the basis of "custom & practice."

 

Where my knowledge fails, is how all this applies to part-time working, which I'm afraid is beyond my management experience; so perhaps someone else can answer this.

 

So, what it all means, is that when a "servant" is "hired" to do a job, then at the outset, there will be discussion of what the job entails (a job description), and I would think that any court would recognise the validity of that as either a part of the contract or in the form of "reasonable" expectation.

 

In other words, if you sign up to play the organ, and they hand you brush and shovel on your arrival, you have fair grounds for complaint or even constructive dismissal; the latter being based on the assumption that you are prevented from doing what you were hired to do. So yes, the job description qualifies the terms of the contract.

 

However, at any time, one or other party may vary the contract with due consultation, and the usual thing is for the "master" (the employer) to point out the change to the contract, discuss the implications of the new terms, and then to get the "servant" (employee) to sign a revised contract. That way, no-one is in any doubt, and things remain legally (and morally) sweet.

 

In effect, it comes down to the meanings of trust, promise and reasonableness, as would be understood by the "reasonable man" sitting on the top deck of the Clapham Omnibus.

 

Of course, there's a lot of sharp practice which slips by without ever being challenged, but that's a another story.

 

MM

 

Alternatively, you can talk to an employment lawyer. Send me a PM. Most of the above is completely wrong.

[MusingMuso]

Alternatively, you can talk to an employment lawyer. Send me a PM. Most of the above is completely wrong.

 

 

=============================

 

 

Most of the above is absolutely correct actually.

 

I've re-checked with .gov sources, and the following is taken from the section on employment law:-

 

 

SOURCE OF EMPLOYMENT CONTRACT

 

 

Contract terms can come from a number of different sources; for example they could be:

 

•verbally agreed

•in a written contract, or similar document

 

CHANGES TO CONTRACT

 

Sometimes it's necessary to change the terms and conditions of an employment contract. Find out why your contract might be changed, what your rights are and how to avoid or resolve problems in making these changes.

 

Either you or your employer might want to change your employment contract. However, neither you or your employer can change your employment contract without each other's agreement.

 

If your employer wants to change your contract

If your employer wants to make changes, they should

 

•consult you or your representative (for example, a trade union official)

•explain the reasons why

•listen to alternative ideas

 

TERMS IMPLIED BY CUSTOM AND PRACTICE

 

These are specific to an employer or kind of work. They are arrangements that have never been clearly agreed but over time have become part of the contract.

 

The only bit which is new to me, and probably reflects changes to legislation since I was involved with it all, is that relating to the required statutory "Principal Statement"....a term quite unfamiliar to me.

 

PRINCIPAL STATEMENT

 

Your employer must provide you with some of your employment details in one single document. This is known as the 'principal statement' and must include:

 

•your name and your employer’s name

 

•your job title or a brief job description

 

•the date when your employment began

 

•your pay rate and when you will be paid

 

•your hours of work

 

•your holiday entitlement

 

•where you will be working (if you are based in more than one place it should say this along with your employer’s address)

•sick pay arrangements

 

•notice periods

 

•information about disciplinary and grievance procedures

 

•any collective agreements that affect your employment terms or conditions

 

•pensions and pension schemes

 

•if you are not a permanent employee how long your employment is expected to continue, or if you are a fixed term worker the date your employment will end.

 

Nuff said!

 

 

MM

[Ian Ball]

Forgive me. I didn't realise you were also qualified in cut'n'paste.

[MusingMuso]

Forgive me. I didn't realise you were also qualified in cut'n'paste.

 

============================

 

 

My original reply came from the top of my head. Quite where your reply came from, I cannot imagine.

 

MM

[Henry Willis]

============================

My original reply came from the top of my head. Quite where your reply came from, I cannot imagine.

MM

 

 

If we read the initial query carefully (and between lines) I think I might be right in assessing the question actually to be : Can the terms of a contract be at variance with a Job Description issued previously? Not about the letter of the law relating to ALL matters of Contract of Employment!

 

A 'Job Description' need not be given in law, but as a part of advertising for candidates for a position it is essentially to identify the primary tasks that the employer may require the prospective employee to carry out. The 'Job Description' can not be used to define contractual terms.

 

A Contract of Employment (which must include a statement of the terms and conditions of employment) must be issued within eight weeks of the commencement of the employment - it SHOULD properly reflect the terms and conditions which are actually being applied: if the job is substantially different from what one had clearly understood to be the case from the job description and from what has passed verbally in the selection process and in the first weeks of the employment, then there is obviously something amiss.

 

In my view it would be rather foolish to sign such a contract and the employee's prerogative is to leave.

 

DW

[MusingMuso]

If we read the initial query carefully (and between lines) I think I might be right in assessing the question actually to be : Can the terms of a contract be at variance with a Job Description issued previously? Not about the letter of the law relating to ALL matters of Contract of Employment!

 

A 'Job Description' need not be given in law, but as a part of advertising for candidates for a position it is essentially to identify the primary tasks that the employer may require the prospective employee to carry out. The 'Job Description' can not be used to define contractual terms.

 

A Contract of Employment (which must include a statement of the terms and conditions of employment) must be issued within eight weeks of the commencement of the employment - it SHOULD properly reflect the terms and conditions which are actually being applied: if the job is substantially different from what one had clearly understood to be the case from the job description and from what has passed verbally in the selection process and in the first weeks of the employment, then there is obviously something amiss.

 

In my view it would be rather foolish to sign such a contract and the employee's prerogative is to leave.

 

DW

 

===================================

 

 

Thank you David; nicely put.

 

I would only add that employment law is an extension of contract law in the widest sense, and any element of dishonesty at the outset would be frowned upon. So in essence, it is usually the case that a job description would not vary very much from an actual 'Principal Statement' of terms.

 

Contract is a bit of a minefield at the best of times, and although I have some experience of employment law by necessity rather than by choice, my particular areas of activity in finance and banking were more to do with financial law, fraud investigation and breach of contract. Happy days....I didn't make much of a dent on it, and the world is still full of con-men.

 

MM

[DHM]

The founts of all knowledge on this topic, particularly as it applies to church musicians, are Barry Williams and Robert Leach.

Their website, www.organistpublications.co.uk, and their book "Everything Else an Organist Should Know" are invaluable.

 

Douglas.

[Henry Willis]

The founts of all knowledge on this topic, particularly as it applies to church musicians, are Barry Williams and Robert Leach.

Their website, www.organistpublications.co.uk, and their book "Everything Else an Organist Should Know" are invaluable.

Douglas.

 

You'll forgive me for saying that there is nothing 'special' about employment law "as it applies to church musicians".

 

All contracts of employment are required to be equable, fair, reasonable and not restrictive. If any contract of employment is outside these requirements it can be questioned. But it should be remembered that one is not forced to sign any contract.

 

DW

[contrabordun]

You'll forgive me for saying that there is nothing 'special' about employment law "as it applies to church musicians".

Yes...anecdotally the problem is frequently the opposite. It's not that the organist is seen as especially privileged by employment law, it's that it doesn't occur to anybody that employment law has any connection with the person who plays the hymns on Sunday mornings.

 

As an individual, in any employment, you don't want to take your employer to court to force them to recognise your rights: you want them to be aware that you have those rights, and to respect them.

[MusingMuso]

If we read the initial query carefully (and between lines) I think I might be right in assessing the question actually to be : Can the terms of a contract be at variance with a Job Description issued previously? Not about the letter of the law relating to ALL matters of Contract of Employment!

 

A 'Job Description' need not be given in law, but as a part of advertising for candidates for a position it is essentially to identify the primary tasks that the employer may require the prospective employee to carry out. The 'Job Description' can not be used to define contractual terms.

 

A Contract of Employment (which must include a statement of the terms and conditions of employment) must be issued within eight weeks of the commencement of the employment - it SHOULD properly reflect the terms and conditions which are actually being applied: if the job is substantially different from what one had clearly understood to be the case from the job description and from what has passed verbally in the selection process and in the first weeks of the employment, then there is obviously something amiss.

 

In my view it would be rather foolish to sign such a contract and the employee's prerogative is to leave.

 

DW

 

 

================================

 

 

Having slept on David's excellent contribution, (I sleep very reluctantly, on the basis that I might miss something), I wonder if there may be another problem?

 

However, I'm not sure that David's statement about a job description not being the basis of a contract of employment, is correct. (I'm not sure, because there may have been changes of which I am unaware).

 

The reason I say this, is that other agreements and documents can be used as the basis for a contract of employment, so long as these are included in the wording of the contract.

 

So you may have a clause such as ......"as described in the employee handbook" or "subject to and including the articles contained in the collective agreement dated....."

 

I seem to recall one of my previous contracts of employment including the words, "....as described in the attached job description."

 

In finance and bamking, as well as insurance, this sort of thing might be worded, "...as described in the attached schedule etc."

 

However, there is something else which can happen, which makes the knowledge of the entire contractual spectrum important, and this concern both variance as well as 'custom & practice.'

 

If someone comes along and says, "We were wondering if you might be willing to arrange the music for the music group?"

 

It may not happen like this, but in essence, once this sort of variance is accepted willingly, the verbal exchange can alter the original contract and create considerable problems later. A lot of companies are very sloppy about this, but the cleverer ones re-negotiate or re-write the contract and get the employee to sign the revised version, as happened to me recently when it was necessary to change things in order to comply with European legislation. If things are kept up to date, there is greater clarity and a few less grey areas to argue about later.

 

I recall the words of one of the barristers with whom I trained, who said something like, "Our job is to write what we mean, and mean what we write; in such a way that there can be no doubt as to intention."

 

Like all simple statements, it sounds simple, but it ain't!

 

MM

 

 

PS: The subject of law always reminds me of that delightful, tongue-in-cheek, medieval skit....."As clerkes fynden written in their book."

[David.Dewar]

I'm very grateful to have had the chance to read the various views expressed above in reply to my original query. They are most helpful, as has been Ian Ball's help by PM, too, in navigating some suddenly choppy waters.

 

One of the benefits of this board is the ready assistance given, on all manner of subjects, by able and willing colleagues.

[innate]

The sub-text I read into the OP was: if there is something mentioned in the job spec which is, either by accident or a realisation that it would be extremely difficult to implement/achieve, not mentioned in the subsequently issued contract of employment, can the employee just forget about it without fear of being taken to task?

 

Many adverts and job specs in our field mention opportunities, particularly in starting or expanding choirs or music groups. If the job spec says "The successful candidate will be expected to form a voluntary choir of men and boys capable of performing cathedral repertoire to a high standard." but the contract of employment makes no mention of that expectation, nor does it refer to the job spec as a document, would there be an obligation on the employee at least to seem to be trying to fulfil the demands of the job spec?

[MusingMuso]

The sub-text I read into the OP was: if there is something mentioned in the job spec which is, either by accident or a realisation that it would be extremely difficult to implement/achieve, not mentioned in the subsequently issued contract of employment, can the employee just forget about it without fear of being taken to task?

 

Many adverts and job specs in our field mention opportunities, particularly in starting or expanding choirs or music groups. If the job spec says "The successful candidate will be expected to form a voluntary choir of men and boys capable of performing cathedral repertoire to a high standard." but the contract of employment makes no mention of that expectation, nor does it refer to the job spec as a document, would there be an obligation on the employee at least to seem to be trying to fulfil the demands of the job spec?

 

 

================================

 

 

This is why there are specialist lawyers dealing with employment matters, but of course, cost is the deciding factor.

 

I would personally have thought that anyone who reads a job description and accepts an appointment, would at least be under some sort of obligation to honour the terms, or at least have a shot at them. After all, reputations are probably more important than matters of law; the latter being a last rather than a first resort, I would have thought.

 

On a broader point, I've always thought that priests and vicars have far too much power, and some exercise it badly or incompetently.

 

Best wishes to anyone currently finding themselves in choppy waters. That's the reason I abandoned church music by and large, because it jusn't isn't worth the stress and trauma; especially with such poor remuneration and the need to earn a decent living elsewhere.

 

MM

[innate]

This is why there are specialist lawyers dealing with employment matters, but of course, cost is the deciding factor.

 

I would personally have thought that anyone who reads a job description and accepts an appointment, would at least be under some sort of obligation to honour the terms, or at least have a shot at them. After all, reputations are probably more important than matters of law; the latter being a last rather than a first resort, I would have thought.

There could have been verbal discussion between employer and potential employee both during the interview and when the position was offered which nullified aspects of the job spec. Might that be legal? If, for example, the spec had specified "an organist" but a pianist turned out to be the only vaguely suitable candidate there wouldn't be an expectation that the employee would legally be expected to learn the organ before the start date.

[MusingMuso]

There could have been verbal discussion between employer and potential employee both during the interview and when the position was offered which nullified aspects of the job spec. Might that be legal? If, for example, the spec had specified "an organist" but a pianist turned out to be the only vaguely suitable candidate there wouldn't be an expectation that the employee would legally be expected to learn the organ before the start date.

 

 

=================================

 

 

 

No! The contract as exhanged and signed is the key factor, and only a fool would sign such a contract if it referred to things beyond their abilities or knowledge. I suspect that the "expectation" that a pianist would learn the organ to everyone's satisfaction, would be an act of folly at least, and possibly a fraudulent contract.

 

My, my.....we're moving closer to my territory by the minute.

 

MM

[innate]

No! The contract as exhanged and signed is the key factor, and only a fool would sign such a contract if it referred to things beyond their abilities or knowledge. I suspect that the "expectation" that a pianist would learn the organ to everyone's satisfaction, would be an act of folly at least, and possibly a fraudulent contract.

 

My, my.....we're moving closer to my territory by the minute.

 

MM

I obviously didn't express myself clearly.

 

I was talking about the difference between a job spec, issued in advance of an appointment, and a contract agreed on appointment. The job spec could say "Must play the organ". The contract might not mention the organ, as a pianist had been appointed. Would the job spec, if not referred to in the contract, have any legal force?

[MusingMuso]

I obviously didn't express myself clearly.

 

I was talking about the difference between a job spec, issued in advance of an appointment, and a contract agreed on appointment. The job spec could say "Must play the organ". The contract might not mention the organ, as a pianist had been appointed. Would the job spec, if not referred to in the contract, have any legal force?

 

 

====================================

 

 

A contract is a contract, and only applies to whatever is contained in it. It doesn't differ much from other forms of contract, but of course, there is appropriate legislation covering employment, and the employer/employee relationship.

 

I would therefore think that the answer is no, because a contract must say what it means, either by reference to a qualifying attachment, or by specific details contained in the Principal Statement.

 

That would seem to make sense to me, but as I said previously, my area of expertise has far more to do with normal trade/financial contract rather than employment contract. Others may know better than I, and I may have overlooked something obvious or contradictory.

 

What I do know, is that even quite small errors or sins of omission can have far reaching consequences when it comes to prosecuting or enforcing terms, and this is why the legal profession exists to oversee the wording of contracts.

 

MM

[Richard Fairhurst]

The founts of all knowledge on this topic, particularly as it applies to church musicians, are Barry Williams and Robert Leach.

Barry posts to the ABRSM organ forum and may be worth tapping up there.

[JJK]

================================

 

On a broader point, I've always thought that priests and vicars have far too much power, and some exercise it badly or incompetently.

 

Best wishes to anyone currently finding themselves in choppy waters. That's the reason I abandoned church music by and large, because it jusn't isn't worth the stress and trauma; especially with such poor remuneration and the need to earn a decent living elsewhere.

 

MM

 

Thanks MM - as a newly-resigned DoM I appreciate your sentiments!

JJK

[msw]

I had a bit of a contractual issue recently, insofar as I'd just been offered a new job when my old employer suddenly threw a contract at me, with a quite long notice period thereon.

 

Being an ISM member, I took advantage of their free legal helpline. As the advisor said to me over the 'phone: "Just accept the other job, give the old place at least a month's notice and don't sign the contract. If they couldn't be bothered to issue it until now, it's their own stupid fault that you can walk away at such short notice."

 

This raises two pertinent points:

1) ISM membership can be well worth the annual subscription fee;

2) Contracts are binding, but only if you've signed them. And in order to that you need to have a copy. And churches are often very slow at providing copies! Having said that, my new place issued one within a month of my arrival. I'll be happy to sign it, for it seems to be well in order and the only quibbles I have are the typos in my name and address on the first page. (This place is clearly on top of its game!)

[MusingMuso]

I had a bit of a contractual issue recently, insofar as I'd just been offered a new job when my old employer suddenly threw a contract at me, with a quite long notice period thereon.

 

Being an ISM member, I took advantage of their free legal helpline. As the advisor said to me over the 'phone: "Just accept the other job, give the old place at least a month's notice and don't sign the contract. If they couldn't be bothered to issue it until now, it's their own stupid fault that you can walk away at such short notice."

 

This raises two pertinent points:

1) ISM membership can be well worth the annual subscription fee;

2) Contracts are binding, but only if you've signed them. And in order to that you need to have a copy. And churches are often very slow at providing copies! Having said that, my new place issued one within a month of my arrival. I'll be happy to sign it, for it seems to be well in order and the only quibbles I have are the typos in my name and address on the first page. (This place is clearly on top of its game!)

 

=======================================

 

 

You did the right thing!

 

However, we shouldn't be too hard on churches, because they are by no means unique.

 

Amusingly, a certain well known supermarket made a complete mess of the wording on a contract of employment, and when I read it through and explained it to the employee concerned, it started a sequence of events which, if it had come to the wider knowledge of the supermarket's employees, would have resulted in a loss of perhaps £10,000,000 to the supermarket.

 

They thought I was a solicitor because I acted as the employee representative, and I didn't bother to put them out of their misery. In the end, there was a memorable meeting in the living room of my apartment in London, when a couple of directors and three senior managers of the supermarket finally buckled under pressure, and from some slush-fund or other, they managed to pay off the employee handsomely, to my delight.

 

It was all very positive really. The employee got £10,000 after a bit of hard negiotiating, bribery and threats of national action, I got £1,000 and the supermarket saved £10,000,000.....everyone was happy.

 

That's what I call good economics!

 

I don't know what happened to the legal team responsible for drawing up the contracts in the first instance.

 

MM

[Ian Ball]

I had a bit of a contractual issue recently, insofar as I'd just been offered a new job when my old employer suddenly threw a contract at me, with a quite long notice period thereon.

 

Being an ISM member, I took advantage of their free legal helpline. As the advisor said to me over the 'phone: "Just accept the other job, give the old place at least a month's notice and don't sign the contract. If they couldn't be bothered to issue it until now, it's their own stupid fault that you can walk away at such short notice."

 

This raises two pertinent points:

1) ISM membership can be well worth the annual subscription fee; Absolutely

2) Contracts are binding, but only if you've signed them. Er, not quite - as this thread has shown, a contract is construed from far more than a piece of paper; its absence does not mean there is no contract of employment (or for 'worker' or sub-contractor status - an organist could indeed be one of those). For employees, in the absence of evidence that both parties intended to be bound by certain notice periods, then statutory notice applies, which is one week for employment from one month up to two years; two weeks for two years' continuous employment, adding one additional week for each further complete year, up to a maximum of 12. Assuming your old job had lasted for over one month, you could have sued your former employer for 2 or 4 weeks' pay for failing to issue a statement of terms and conditions, but only if you had another actionable claim. It is not a stand-alone right.

 

And in order to that you need to have a copy. And churches are often very slow at providing copies! Having said that, my new place issued one within a month of my arrival. I'll be happy to sign it, for it seems to be well in order and the only quibbles I have are the typos in my name and address on the first page. (This place is clearly on top of its game!)