Contracts of employment can be constructed in various ways, express or implied. Contractual terms may therefore be:
  • Express i.e. by oral or written agreement or
  • Implied.i.e through custom and practice within a particular employment or where a particular term has been built in to employment relationships as a common characteristic by the Employment Tribunals or other Courts.

An express term will normally prevail over an implied term where there is any conflict with the content of that term of employment. If employers have complied with their obligation to provide a Written Statement of the Main Terms and Conditions of employment, these will certainly form express contractual terms.

In the absence of express terms, the courts have made many decisions to decide if it is possible to imply a particular term into Contracts of Employment.

Examples of implied terms are:

  • Obvious terms which the parties must have intended to be part of the contract
  • Implied terms necessary to give the contract business efficacy. These should be no wider than is necessary to give the contract this effect
  • Terms implied by the conduct of the parties, either at the time of the agreement or during the conduct of the contract
  • Terms implied by custom in that trade, industry or particular area
  • Terms implied by virtue of the custom and practice within that particular employment
  • Rights of employees set down by statute.

The most important statutory rights of this nature relate to:

  • Written Statement of Main Terms
  • The right not to be discriminated against
  • Equal pay
  • National Minimum Wage
  • The right to not suffer unlawful deduction from wages
  • Guarantee payments
  • Itemised pay statements
  • Statutory sick pay
  • The rights of parents and carers
  • Payments during medical suspension
  • The right to a safe place of work, breaks and rest periods
  • The right to paid annual leave
  • The right to various types of time off
  • Rights in relation to Trade Union membership and activities
  • The right to be accompanied at disciplinary or grievance hearings
  • Continuity of employment in a Transfer of Undertaking
  • Rights to minimum period of notice
  • Redundancy rights
  • Unfair dismissal rights
  • Rights to a written statement of reasons for dismissal

In relation to the contractual terms that are implied by common law as a general characteristic of the employment relationship, the most important implied duties in this area in relation to the obligations of employees are:

  • Service
  • Competence
  • Due diligence and care
  • Fidelity
  • Confidentiality
  • Notice (on the part of the employee)

Contractual terms implied by common law in relation to the obligations of the employer are:

  • Payment of agreed wages
  • Provision of work in certain circumstances
  • Care for the health and safety of employees
  • Provision of a grievance procedure
  • Reasonableness
  • Mutual trust and confidence
  • Indemnity for costs incurred
  • References
  • Notice (on the part of the employer)

Contractual Information Guide

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