Resolving confusion in contract documents

The reams of contract documentation – even for small scaffolding jobs – can be daunting to read. The documentation may have been put together by different people or by somebody who didn’t pay too much attention to its content. The documentation may not even be together in one neat pile. For example, you may be bound by the main contract conditions but these can only be read at the main contractor’s offices between certain times and on certain dates. Inevitably confusion is bound to result.

TIPS FOR THE INDUSTRY:

Restructuring your business is stressful enough and the last thing you’ll want is not knowing where you stand as an employer if an employee is refusing to return to work. This article by Citation, Scaffolding Association Associate Member and experts in HR, Employment Law and Health & Safety, outlines some key things for businesses to consider.

What if an employee prefers to work from home?

As a scaffolding company, many of your employees are unable to work from home, but it may be possible to do so in certain roles.

In this case, if an employee is insistent that they want to carry on working remotely but you think they’re not performing as well as they would in the workplace, you have the right to refuse their request. But before you refuse their request, you should look at why the individual might be underperforming.

Key questions to consider include:

• Are they aware of homeworking practices?

• Have you made it clear what their core hours are?

• Could their children be distracting them from their work?

• Have you kept in touch with them regularly to maintain their motivation?

• Have you communicated that the workplace is COVID-secure?

If you think you’ve done all you can as an employer to promote good performance from your employee, then you can refuse their request to work from home. Just make sure you communicate this clearly to them, so they fully understand the reasoning behind the refusal.

Can I bring an employee who was shielding back to work?

From 1 August, the government paused shielding unless the transmission of COVID-19 in the community starts to rise significantly. This meant that individuals who were previously shielding could return to work if you need them to.

To ensure your employees who were shielding feel safe in the workplace, you should conduct individual risk assessments to reassure them that their safety is a top priority.

If one of your employees is clinically extremely vulnerable, they should have received a letter advising them to shield which they should provide you with if they feel unsafe. Then, you can decide whether to bring them back to the workplace, keep them on furlough, or ask them to remain working from home.

Where do I stand if an employee has childcare issues?

A huge challenge employers have faced is bringing employees back into the workplace when their child’s nursery or school was closed. Whilst government guidelines supported parents who were hesitant to send their children back into school, certain steps can be taken to bring a parent back into the workplace.

If you have concrete evidence that the employee isn’t being truthful or that you know that a family member is available to look after the children, you can take action as it’s not a genuine childcare issue, but you need solid evidence to back this up. If work is available, it isn’t appropriate to keep

Schools reopened in September and childcare settings opened from 1 June, so there shouldn’t be the same degree of childcare challenges now when bringing an employee back into the workplace.

If you decide to take an employee off furlough, however, just because you don’t want them to be sat at home with their children, this can be classed as discrimination against a parent, and you may end up with a tribunal on your hands. The same also applies if you dismiss an employee because they’re refusing to send their child back to school as government guidance supports parents that want to keep their children safe.

The best way to approach returning an employee to work is by communicating with them, understanding their concerns, discussing the needs of the business whilst offering support where you can.

How can Citation help?

These are challenging times, especially for employees, business owners and employers. Our team of HR and Employment Law experts provide you with their specialist advice based on the latest government guidelines to help you work through this difficult period.

Let’s consider a very simple example. A firm has just won a contract to provide scaffolding to facilitate the refurbishment of a small office block. The sub-contract is the standard building sub-contract published by the Joint Contracts Tribunal (JCT) with, as is often the case, a schedule of amendments to the contract conditions. The documentation includes the main contract information schedule giving details of the main contract works and the Numbered Documents which include a variety of documents such as those describing the works to be carried out, drawings, specifications etc. Closer examination of the Numbered Documents reveals that the scaffolding is to be erected only on the north side of the building whilst the main contract information schedule refers to the erection of scaffolding on both the north and east sides. How is such discrepancy resolved?

The contents of the different documents such as the specification and drawings may be in conflict. This could also happen within a single document especially where there are amendments to a standard form of contract; the amendments may be in conflict with a part of the standard contract that hasn’t been altered. Needless to say, the only way to minimise these problems is to spend time carefully reading the documentation. Investing time in this way will help avoid the disputes that could arise in the future.

• Read carefully through the contract documents to ensure consistency.

• Raise any concerns as early as possible – such as in pre-contract meetings.

• Disputes over discrepancies in documents are likely to be long-winded and costly.

Order Of Precedence Clauses

It is, of course, far better to resolve these issues as early as possible at pre-contract meetings. If the discrepancy has not been spotted the next step is to look in the contract for what is called an order of precedence clause.

The 2016 JCT Standard Building Sub-Contract Conditions includes an order or precedence clause. Provided it hasn’t been amended this makes clear that where there is a conflict between the main contract information schedule and the Numbered Documents, the former document is to prevail over the latter.

• Beware of contract clauses placing the risk on you of poorly assembled documentation containing inconsistencies.

If you want the advice and backing of a team of HR and Employment Law experts, feel free to give our team a call on 0345 844 1111 to talk through your business needs. Quote ‘Scaffolding Association’ to access your preferential rates if you are a member.

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If there isn’t an order of precedence clause the law is that the contract documents have to be considered as a whole. This means that a court will attempt to reconcile discrepancies by considering all the documents together and all other evidence (such as any correspondence between the parties). In fact, this will be the approach of the courts even where there is an order of precedence clause. In a recent case the court held that an order of precedence clause would only come into play when the discrepancy amounted to an out and out conflict between the content of the relevant documents. This would be the case, for example, where one document stated that all the scaffolding must be painted in yellow while another stated that only white paint must be used.

Some contracts such as NEC (New Engineering Contracts) do not have order of precedence clause. NEC believes that each contract document is as important as the other. However, conflicts between documents are to be resolved by an instruction from the project manager (or from the main contractor in the case of sub-contract documentation).

But, beware of commonplace non-standard contract clauses which state that you have to take the risk of inconsistencies within contract documentation. This places the burden upon you of having to check all your documentation extremely carefully.