The use of verbs in an employment contract
This article is all about verbs and how they are used in a simple contract of employment.
A written contract is an agreed statement by the parties stating what:
they will do (a binding promise),
they may do (a choice or discretion),
they must do (an obligation), and
they are permitted to do (an authorisation).
The verb form used in each case is the auxiliary modal verb form. The meaning of auxiliary is 'helper' because some verbs need a little assistance to complete the sense. For example, take the verb to write (the infinitive form). The 'helper' words are in italics in the following sentences.
I will write to you with the result of your application (a binding promise)
You may either email or call me (a choice)
You must write your name and address in full (an obligation)
You may write to the director on my behalf (an authorisation).
The infinitive form of the verb is always used, sometimes with the complete form
You are required to write your name in capitals.
You are obliged to write your name in full
He dared to write me a rude email
Grammar lesson over. Now let's dive into the contract to see how the verbs are used to govern the conduct of the parties; what they will do, what they may do, what they must do and what they are authorised to do. The contract can be downloaded by clicking here.
The parties
The employer is Graham Gover Limited and the employee is William Gates (known to his friends as Bill). The contract covers all the expected items: annual salary, holidays, notice periods, confidentiality and so on. Each party has agreed on how they will act toward the other.
"Will" as a binding promise
The contract uses will in at least two ways: to create a binding promise, and to speak of a future event.
Your employment with us under this contract will start on 1 April 2023 (the Start Date).
When the parties negotiate an employment contract and agreement is reached, the employment contract starts at a later date. The clause quoted here simply refers to a future event. The parties agree an important contract term, but it would be just as accurate and binding to say "Your employment ... starts on 1 April 2023". Likewise, at clause 6
Your normal place of work will be at 123 High Street
it would be equally accurate to say "Your normal place of work is at 123 High Street".
We often use the present continuous tense to speak of future events
I am visiting Kyoto next May
is the same as
I will visit Kyoto next May.
Grammatically it is no different in a contract. But in a contract, the parties are agreeing that the future event will happen. By contrast,
"5.1. We will pay you a salary at the rate of £100,000 per year"
is more than a statement of a future event; it is a binding promise by the employer.
2.4. During your employment you will ... devote your whole time and attention to your duties
is a binding promise by the employee.
What about must and shall?
The contract also uses must to impose an obligation. The word must appears on four pages (3, 4, 5 and 8) and in each case an obligation is imposed on the employee, not the employer. I don't believe that this is significant. The obligations imposed (taking leave, reporting sick, returning their computer) do not appear more important than other requirements the employee must observe (confidentiality, full-time attention to their duties, make pension contributions).
The contract does not use the word shall at all, which is the most common way to impose an obligation in a contract or a deed.
There is no difference in the strength or effectiveness of any of the following clauses:
During your employment you will ... devote your whole time and attention to your duties
During your employment you shall ... devote your whole time and attention to your duties
During your employment you must ... devote your whole time and attention to your duties
During your employment you are to ... devote your whole time and attention to your duties
However it is expressed, it is clear to the employee what their obligations are. They do not have a choice, unlike ...
The use of the word may
May indicates a choice, a possibility or a discretion, plus the ability and authority to act. The clause
4.2. We may vary your hours of work or the pattern of your normal hours, as we consider necessary to meet the needs of the business.
means:
There is a possibility that work hours may have to change. It might happen, or it might not.
If it does happen, the contract gives the employer the legal right or ability to change the hours of work.
But there is a limit on the employer's ability. The employer must give careful thought to (consider) all the relevant facts, and the change may only be made if it is necessary to meet the needs of the business.
This is called a limited, or restricted, discretion. Compare this with paragraphs 7.3, 9.2, 12.3 and 13.3 where the employer has unlimited discretion:
i. to require an employee to work on a public holiday,
ii. to suspend an employee from work,
iii. to set the amount of benefits paid, and
iv. to end the employment contract.
May also gives authority
In this sense, the word may is used to state that a party has been given permission or is authorised to do something.
The manager may (is able to) refuse a request to take a holiday (paragraph 7.5). The employer may (is able to) move personal data outside of the European Economic Area (paragraph 15.4).
Conclusion
In this article, we have combined a grammar lesson on modal verbs with a review of how those verbs control the conduct of the parties. When you draft in English as a second language, it is very important that you can see clearly the difference between verbs that impose requirements, that give a choice and that give permission.
