Counterparts clause

A counterparts clause is an example of a “boilerplate” clause, which are clauses that are designed to achieve certainty for the parties to the employment contract.

Counterparts clause

It’s common for contracts and agreements, including employment contracts, to be executed (i.e. signed) in counterpart, meaning they are identical documents bearing the signature of one party. So, the employer and the employee may each sign a separate copy of the employment contract, each of which they’ll consider to be an original. Our Counterparts Clause states this expressly.

Boilerplate clause

A counterparts clause is what’s known as a “boilerplate” clause, i.e. a standard provision that appears at the back of a contract and which is there to achieve certainty. It’s more common to find boilerplate clauses in commercial contracts than in employment contracts, but they do occasionally appear in the contracts of senior employees and directors. Examples of other boilerplate clauses in the employment context include Governing Law and Jurisdiction Clause, No Oral Variation Clause, Notices Clause, Third Party Rights Clause and Whole Agreement Clause.

Is it needed?

You don’t need our new clause if both you and your employee will sign just the one employment contract, or if only the employee will sign it, and then you’ll keep that original and simply provide a photocopy (or scanned copy) of it to the employee. Our Written Statement of Employment Particulars provides for only the employee to sign it - you don’t actually need to sign it being as you drafted and issued it and so you’ll be deemed to have agreed to and be bound by your own terms. Although our Letter Enclosing Contract of Employment assumes that you’ll provide two copies of the written statement, or employment contract, to the employee, it only asks them to sign and return one of those copies (and the other is for them to retain for their records, without their needing to sign it). That signed version returned to you will then be your original. If you use our written statement and letter for your staff, there therefore won’t be any counterpart contracts and so there’s no need for our clause. However, if there’s to be more than one original signed employment contract (e.g. one for you and one for your employee, both signed by both parties – often called duplicates), or there’s to be no single original document that’s been signed by both parties (e.g. one original will be signed by you and then retained by your employee and one original will be signed by your employee and then retained by you), you can include our clause in it. That said, note that even without a counterparts clause, English common law normally provides that a contract is still valid if each party has signed a separate identical original document, and so our clause isn’t absolutely essential. It simply makes express what the law already provides, but it can provide both you and your employee with some reassurance, and it can prevent your employee trying to argue that the counterpart they hold isn’t binding on them because they didn’t sign it.