Your employment contract

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About this section

This section provides you with general and specific information about the different types of employment contracts, your contractual rights, terms and conditions and how to address the problems that can arise between you and your employer when interpreting or applying the employment contract. To use this service, scroll down to Related Pages  where you will find detailed guidance with signposts to the best of what is available on the web.  Some of our available resources are listed below, and you will find more resources in the E-Book shop. You can also use the search facility or the site map to go straight to what you need.  If you need more help contact us and we are happy to help with specific information, advice and directions on what to do.

 

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Written statement of employment particulars

There is no legal requirement for your employer to give you a written contract of employment, but they do have to provide a written statement of particulars of employment. S1 Employment Rights Act 1996 gives you the right to a written statement of terms and conditions of employment. This is called a Section 1 Statement. S3 Employment Rights Act 1996 says that the Section 1 Statement must contain the disciplinary and grievance rules and procedure which apply to your employment as well as providing the main terms and conditions of employment including;

  • The name of your employer and your name
  • The date the job started
  • Your job title and duties
  • Your place of work
  • The rate and frequency of pay.
  • Your hours of work
  • Holidays, sick pay, pension scheme
  • Notice
  • Details of any incorporated collective agreements

Employment contract

An employment contract is a document in which you and your employer agree on the work that you are going to do, how you will do it and when. Your employer agrees to pay you an amount of money in exchange for the agreed work. You have a number of rights given to you by statute, but the basic relationship between you and your employer is covered by the terms and conditions of the employment contract. Your contract can be made up of any or all of the following terms;

  • express terms
  • implied terms
  • imposed terms
  • incorporated terms

Express Terms

These can be written down in the contract or spoken. A spoken agreement is as binding as one that is written down.  It can apply even if you and your employer have not signed it. You may have a grievance because your employer is trying to change an express term of your contract or is not doing what is supposed to happen under the express term. If you have a problem about an express term after you have signed the contract, then you should write a problem solving grievance to address it.

Implied Terms

These are terms which are not written down in the contract but are as much a part of the contract as if they were.  They have been developed by the courts (known as the common law) and will be implied in circumstances where it is necessary to do so, or if the parties would have agreed to those terms after discussions.  Terms can be implied in the following ways;

  • by conduct – where it is clear from you and your employer’s attitude that you had agreed a particular term from the beginning of your job but it was never actually written down or spoken between them
  • using the officious bystander test – where it is so obvious that you and your employer must have intended to include that particular term, and you would have agreed to include it if an officious bystander (who was present when the contract was being formed) had suggested it to both of you.
  • by custom and practice – a term can be implied where it is normal practice in your particular industry, or an established way of working at your workplace.
  • as a matter of business efficacy – a term can be implied where your employment contract cannot work, using the express terms alone.
  • as a characteristic term – where there is nothing to show that you and your employer meant for that term to apply but there is evidence that other employers and employees in general have accepted the term.

You may have a grievance because you and your employer agreed something that was not written down, and your employer see’s things differently to what was agreed. You may also have a grievance because you need to imply a term into your employment contract to make it work better, or enable you to do your job better.

Imposed Terms

These are terms that are imposed by the courts if they are a necessary part of a  particular type of employment contract. The most important ones are the term of mutual trust and confidence, and the duty of fidelity.

 

The term of mutual trust and confidence

Every contract of employment contains this implied term that neither an employer or an employee will act so as to breach the duty of mutual trust and confidence that exists between them without good reason. If either you or your employer breaches this term, either of you can take action against the other. If you breach the term, your employer can terminate your contract of employment after going through a disciplinary process to establish that you have indeed breached it. If your employer breaches the term, you can resign and claim constructive dismissal if a grievance does not resolve the breach, or if the problem is so serious that you are forced to leave the job immediately. You would need to show that your employer’s behaviour was likely to destroy or seriously damage mutual trust and confidence even if your employer did not mean this to happen.  Most unresolved problems between employees and employer’s are a breach of mutual trust and confidence. If your employer does not follow policy and procedure in dealing with your grievance or ignores your grievance, it would be a breach of this duty. Another example is where your employer imposes changes to your working arrangements.

The duty of fidelity

Every employment contract contains this implied term that an employee will work for their employer with good faith and fidelity.  The duty of fidelity requires that you should have regard to your employer’s interests. It does not mean that your employer’s interests are more important than yours. Some examples are the duty not to compete with your employer, and the duty of confidentiality.

Statute

Some terms can also be imposed into an employment contract by statute. As an example, sections 64-66 Equality Act 2010 impose a sex equality clause into the contract of employment in particular circumstances.

Incorporated Terms

Terms can also be incorporated from other documents such as staff handbooks, and collective agreements.

 

Other terms and conditions

 

Some other provisions that you may find in your employment contract are;

Intellectual Property – generally everything you create at work belongs to your employer. It becomes your employer’s “intellectual property”

Restrictive covenants – A restrictive covenant is a section (clause) in an employment contract which says that an employee is not allowed to compete with a previous employer for a certain period after the employment contract has ended. It can also say that the employee cannot deal with any customers of the previous employer by using information gained during the previous employment.

The types of restrictive covenants generally used are;

  • Non-dealing clause – This prevents a person from dealing with former clients, customers or suppliers in any way.
  •  Non-competition clause – This restricts a former employee from working in the same industry or similar employment with a competitor.
  • Non-solicitation clause – This stops soliciting (poaching) clients, customers or suppliers of the previous employer.
  • Non-poaching clause – Prevents employees from stealing their former colleagues.

The Courts will generally not support a restrictive covenant against an employee on the grounds that it is a restraint of trade and contrary to public policy. If the previous employer can prove that the restrictive covenant is important to protect legitimate business interests, and it extends only as far as is reasonably necessary to protect those interests then it will be upheld and enforced by the Courts.

Garden Leave clause – this is a clause that applies at the end of your employment.  You will remain an employee on full pay during your notice period, but you will not be required to work. The aim of garden leave is to keep you from working with a competitor until any information you have has expired.

Warranty confirming eligibility to work in the UK – you assure your employer through the warranty that you are entitled to work in the UK.

Reasonable amendments – a clause which allows your employer to make reasonable changes to the employment contract without your agreement.

 

If your employer tries to change the terms of your contract without your agreement, or without giving you anything acceptable in exchange for the changes, you would have a claim in the Employment Tribunal. You should start addressing this problem by raising a formal grievance.

 

 

Best of the web

ACAS – Contracts of employment

GOV.UK – Employment Contracts

CAB – Contracts of employment

Money Advice Service: Employment Contracts, your rights and key terms explained

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

 

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Case Study

In the Scottish case of Collins v First Quench Retailing Ltd [2003], Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed. Ms Collins had been the manager of Victoria Wine, run by First Quench Retailing, for about ten years. When Mrs Collins started in the shop she had been concerned about security and raised this with management. Since 1977 there had been 13 reported crimes at the shop, including five thefts, one minor assault, one serious assault and one assault with intent to rob. There were two armed robberies in 1994 and four... Read More
Ms Jacqueline Collins was awarded £179,000 from her employers when the off-license she managed was robbed.Collins v First Quench Retailing Ltd
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