Unreasonable terms

Published: 30 Mar 2015 Average Rating: 4 / 5 Print

Author: Tim Cummins

'Just because you can doesn't mean you should' .... That is a principle which every organization should apply when developing its terms and conditions and underlying business policies.

It certainly seems to be the case in the recent announcement by Amazon that it will no longer require contract staff to sign non-compete agreements (at least in the UK). Many of these workers are on minimum wage and on variable hours. The inequity of such a term should surely have struck any fair-minded executive at Amazon and resulted in such a provision never being imposed. But it did not – and this calls into question the internal review process for policies and contract provisions.

According to a recent study of European CEOs, 'honesty and integrity' are today's most important attributes for business. They may well be right, since public and political opinion is increasingly hostile to what is seen as unfair and manipulative behavior by many large corporations. Examples abound – for instance on issues such as payment terms, rights of termination and ownership of intellectual property. Amazon is certainly not alone in using its power to impose one-sided contracts.

It sometimes seems as though companies take the view that if there isn't a regulation prohibiting it, any action is acceptable. But of course it is not – and this points to a key failing in many organizations today: a lack of judgment.

This issue of judgment is not new, but it is increasingly complex. Our interconnected world, the growth of specialism, the shift in public and political expectations have combined to multiply the range of stakeholder views that must be taken into account. At the same time, functional silos within business have made it increasingly difficult to reach balanced decisions on a timely basis.

It is this set of dynamics – and the need to project 'honesty and integrity' – that underpins growing interest in 'commercial acumen'. Organizations need their staff to have greater awareness and sensitivity to the potential consequences of their actions. Those who prepare or draft such terms must, in particular, be a last line of defense and ready to challenge the wisdom of the policy sponsor. For those in procurement, contract management or legal, the opportunity is clear: it is time to have the courage to demonstrate capacity for judgment.


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