The Law on Job Descriptions
Job descriptions are a common feature of UK workplaces and typically consist of the employer’s statement of role(s) in the organisation, setting out the required experience and professional qualities of the potential hires to enable them to satisfy a number of practical expectations, such as human resources and recruitment processes (such as through candidate vetting), or regulatory requirements (for example, in the case of senior appointments).
In general terms, job descriptions get to the kernel of the employer’s needs about a role; be that about experience, suitability or otherwise, for the work being undertaken. Often they work with the obligatory statement of particulars that should accompany the employment contract so that those appointed are aware of their obligations at an early stage in the employment life-cycle.
At the top level , employers see the general purpose of job descriptions as:
• A key part of an initial and ongoing alignment of the needs of an organisation to its workforce through recruitment; by ensuring that they are aware of the requirements and limitations of a particular role
• A mechanism to signal to potential employees the "style" of the organisation
• Drafting of the roles’ requirements as the basis for advertising
By the time a contract of employment is signed by an individual, there is a general assumption by the parties that the scope of "work" is understood. Indeed as far as the employer is concerned that scope would often appear to be relatively broad, with the objectives being to capture both present and future requirements.
Legal Mandates for Job Descriptions
Job Descriptions are an important part of the employment relationship. They can aid recruitment, ensure clarity and consistency in communication between the employee and employer, provide a framework to ensure performance is fair and consistently reviewed and ensure goals and objectives are agreed.
But: do you legally need to have a job description? Or at least a document that sets out what is expected?
The short answer is no. As a general rule, there is no legal requirement for employers to issue a job description, nor is there any express provision in legislation requiring an employer to provide an employment contract or set out the particulars of employment.
However, certain legislation does require employers to provide some information relating to the employment relationship. For example, the Employment Rights Act 1996 requires employers to provide workers with written particulars of employment within two months of the commencement of employment, although this does not require a job description to be issued as such. The information that needs to be provided is set out under section 1 of the Employment Rights Act 1996. This includes a statement of pay and interval, hours of work, holiday entitlement, place of work, whether there is a probationary period and if so, its length, the Title of the Jobholder and whether there is a required notice period. Practically, many employers go beyond this minimal level of information and will include other details such as a brief job description. Some employers prefer to reserve the right to change job descriptions and merely issue a person specification in relation to skill requirements.
Depending on which sector you operate in, and the roles you recruit for, there may be other legal obligations on employers to ensure there is a job description (or person specification).
For example, in our experience, employers who are obliged to comply with the Care Standards Act 2000 will often find that the respective Care Quality Commission (CQC) regulations require a job description to be produced detailing the duties of the job holder. These regulations also require a person specification for the role to be produced, setting out the experience, qualifications, and skills required for the post.
In the educational sector, Ofsted issued guidance in November 2018 "Inspecting safeguarding in early years, education and skills settings", which recommends that "Leaders ensure that job descriptions are clear about what is required of all staff and that staff understand their responsibilities."
Our team, here at Winckworth Sherwood comb through the extensive policy and guidance documents of regulators regularly on behalf of our clients, whether that is for the health and social care or education sector, where jobs roles have very specific roles and responsibilities and a failure to meet those obligations have serious consequences.
It is clear from a regulatory compliance perspective that it is essential that job descriptions are produced, discussed, and agreed and kept under review.
In the absence of a legal requirement to produce a job description, are there any other reasons you should consider including one?
One of the benefits of producing and issuing a job description is that it clearly sets out the expectations that the organisation has of the job holder. There is also a clear expectation on the job holder as to what is expected of them. Therefore, there should be a reduced chance of any ambiguity as to what it is the role holder is required to do.
In the event that an employer needs to take disciplinary action against an employee, whether it be for underperformance or for a misconduct allegation, the document would be a reference point to determine whether the allegations against the employee are reasonable and objectively evidenced, due to the clear statements of expectations of the job holder set out in the job description. In addition, a job description may aid an employee to understand that their underperformance is not meeting the expectations of the employer.
The above reasons are not legal reasons, but nonetheless important ones. Where a business redrafts its policies and procedures, a job description, where there is none, is a document which should not be forgotten about – even if for no other reason than ensuring that, if needed, it can be referred to in evidence in the event of a litigation.
Whatever the reason for having a job description, it is important that it is kept under review and updated when the role changes in any way.
Employer Considerations
A well-written job description is therefore usually a great idea. That said, there are also some very real consequences to having them that an employer must consider. For example, you might actually be opening Pandora’s box by creating the document. Employees may expect that their jobs and duties will never change. Employees cannot be expected to perform duties that differ significantly from those described in their job descriptions. If your company lays off, dismisses or demotes an employee, and later a court finds in favor of the employee, the advancement or promotion may get waved off if the employer can’t show a clear shift in job expectations. Missing job descriptions mean more ambiguity and lack of clarity for both employees and employer. Moreover, an employer will want to ensure that its job descriptions do not contain any unintended terms so as to impose unintended obligations or responsibilities. In addition, job descriptions should be formalized. If they’re not, employers may have great difficulty in defending against termination claims. A short description, unexpanded and balanced by sometimes after-the-fact, less-than-thoughtful commentary may prove nothing at all useful to an employer. Additionally, as is the case with the ADA, maintaining an affirmative defense when challenged by an employee may be impossible if there are or were job descriptions that contradict the employer’s claim of unquestioned discretion to modify job requirements. And, lastly, if no job descriptions exist, then employers cannot defend their decision making based on them.
Job Descriptions and the Law
Job descriptions play a significant role in employers’ compliance with various employment laws. For example, vague or overly broad job descriptions may expose employers to discrimination claims. Employment laws such as the Americans with Disabilities Act (ADA) require employers to provide reasonable accommodation for qualified employees with disabilities to perform the essential functions of their position. Wage and hour laws broadly apply to employers’ requirements to pay their employees for work performed. Courts have interpreted the language and terms of job descriptions as evidence of how the employer intends to apply these laws to its employees.
Discrimination Laws
An employer’s differential treatment of similarly-situated employees of different classes can give rise to an inference of discrimination. Such differential treatment generally includes the application of one or more work rules that are enforced against employees of one class but not against employees of another class. When an employer enforces one work rule against one class of employees but does not enforce that same work rule to employees of another class, this generally gives rise to an inference of discrimination.
The language of job descriptions can be used as evidence of the employer’s intent and/or policy of applying one work rule but not another to employees of different classes. For example, in EEOC v. Caterpillar, Inc. 609 F.3d 432 (7th Cir. 2010), the Seventh Circuit held that an employer uniformly applied an absence rule to all workers, but because some of the absence rules did not apply to employees of different classes, the employer violated the ADA by applying one absence rule to disabled employees and another to non-disabled employees.
Wage and Hour Law
The terms of a job description also give rise to an employer’s obligation under applicable wage and hour laws. To trigger wage and hour protections under the Fair Labor Standards Act (FLSA), an employee must be an "employee of an enterprise engaged in commerce." 29 U.S.C. § 203(s)(1). As such, the FLSA defines an "enterprise" as an enterprise whose "annual gross sales volume" exceeds $500,000. 29 U.S.C. § 203(s)(1)(A). Business records and documents such as tax returns are used to determine whether a business exceeds the annual threshold requirement. Some courts have found that the wage and hour provisions of the FLSA applied because a job description provided evidence that a specific employee exceeded the threshold requirement.
For example, in Donovan v. Sabine River Authority of Texas, 670 F.2d 355 (5th Cir. 1982), the Fifth Circuit Court of Appeals determined that the FLSA applied to one of the employer’s work sites because the work description prepared by a former employer and submitted by a former employee demonstrated that the combined annual gross sales volume of two businesses that shared a work site exceeded the applicable threshold requirement.
Reasonable Accommodation
The ADA requires an employer to provide reasonable accommodation to an otherwise qualified employee with a disability to perform the essential functions of his or her position. An employee is not entitled to a specific accommodation based on desire, as he or she views it. Rather, an applicant or employee is typically entitled to an accommodation sufficient to permit performance of the day-to-day functions of the position. Generally, an essential function is a job duty that is ‘fundamental’ to the position the individual holds or desires. An employer may use a job description as evidence of essential functions of a job for the purpose of informing employees of the responsibilities and essential functions of a job, and for evaluating whether an employee or applicant can perform the essential functions of the job with or without a reasonable accommodation.
Effective Practices for Job Descriptions
To the extent employers rely on their job descriptions, they should reflect the essential functions of a position. In addition, they should be updated to be accurate and comply with all applicable laws. Therefore, employers should:
• Review their written job descriptions periodically and before posting them for new positions or filling existing positions .
• Comply with the Equal Employment Opportunity Commission (EEOC) guidelines to ensure that they comply with disabilities laws (although the EEOC guidelines for employers suggest that no specific language should be used in the job description, it should include language such as the essential functions must be performed with or without reasonable accommodation).
• Ensure physical requirements are carefully crafted to follow the applicable law.
• Include the job requirements and qualifications.
• Include a statement that the job description is not an employment contract.
Case Law and Legal Examples
There are relatively few cases in which the courts have treated job descriptions as admissions or as binding or dispositive admissions by the employer of a specific level of performance. Of course, most employee cases are eventually settled rather than litigated, so we do not have judicial guidance in many areas. One of the earliest and most famous cases discussing job descriptions is Von Heusch v. Homesteaders’ Mutual Life Ins. Co., 172 N.W. 865 (Iowa 1919). There, an insurer had issued an insurance policy that contained a printed matter stating that, "you [the insured] are required to observe the Plan of Organization shown on Page 367." That page provided that, "The management may cancel this Policy when any assessment on account of regular annual expenses shall not be paid within thirty days from its date of levy." When the insured failed to pay a regular annual expense assessment, the insurer cancelled the policy and refused to pay the insured’s claim. The trial court held that "the policy did not create a contract of insurance, and that defendant could terminate it at will by the simple process of cancellation." The Iowa Supreme Court noted that the policy stated that the insurer "accepts the application as amended and values agreed upon" and reasoned that the printed matter in question amounted to "an attempt to incorporate the plan into the contract as limiting the contract right to its expiration at any time on less than 30 days’ notice for nonpayment of any regular annual expenses." In other words, a future insurance company’s mere statement that the policyholder is required to perform an act of a certain character within a certain time period can (in California and other jurisdictions) be construed as a promise to allow a 30 day cure of a breach, and a breach of that promise could support liability in tort for negligent failure to perform in a manner reasonably expected under the circumstances. In Haynes v. Union Mills & Packing Co., 43 Cal App 2d 856, 111 P 2d 634 (1941), the plaintiff claimed that she was wrongfully terminated for refusing to comply with a new attendance policy requiring workers to punch in and out for the beginning and end of each break. The employer claimed that the plaintiff had been an at-will employee and that the breaks were not part of the work schedule. It further argued that the policy was merely a recommendation to employees to punch in and out, "because the wage earner ought to be entitled to the benefit of all of his time, customary and reasonable, and should not be disturbed unnecessarily in any individual job that he may be working on." The trial court ruled in favor of the plaintiff, but the California Court of Appeals reversed. It held that the very existence of a written policy requiring all employees to punch in and out for breaks, and attached penalty for non-compliance, "meant something to the defendant employer and that it made it perfectly clear that the defendant had no intention of waiving the enforcement of it." The reasoning in Haynes may be good law in California today, and it is consistent with the general principle that even oral policies can terminate at-will employment if promulgated in a "conspicuous manner" to employees (e.g., by posting a notice in the workplace or by including an explicit statement in the employee handbook). Smith v. Douglas Aircraft Co., 60 Cal App 3d 715, 131 Cal Rptr 374 (1976).
Legal Trends Concerning Job Descriptions
With the future looking bright for electric vehicles and autonomous trucks, the Department of Transportation has warned that trucking companies may increase their use of job descriptions for highly sought after and short-supply positions like truck drivers. But the Department also warns that the technology around job descriptions is changing rapidly. In the past, trucking jobs were plentiful and relatively accessible to workers who had just finished high school. Now, with a much more demanding job outlook, the importance of job descriptions tracking the effects of technology on the trucking industry will be essential. As more trucking companies seek to cut down on the hours their drivers spend on the road , using package delivery drones will only become more popular. Autonomous trucks will also challenge the need for drivers, but trucking companies nevertheless still will need to include job descriptions to weed out applicants who are under qualified for the position. Automation will decrease the need to hire as many truck drivers (leading to less federal contractor work opportunities), and employers will likely be required to post job descriptions so they can seek specific candidates within their workforce.