#13678 - Express Implied Terms And Post Termination Restraints - BPC Employment Law

Express/Implied Terms and Post Termination Restraints

1. Express Terms

• S.1 Employment Rights Act 1996

  • At beginning of employment, employer must give written statement of particulars of employment within 2 months

  • Can bring claim asserting failure but failure does not give rise to claim on its own

  • Written particulars which statement must contain:

    • Names

    • Dates

    • Continuous employment periods

    • Pay

    • How calculated

    • Hours

  • S.2(4) ERA – some items must be in ONE document:

    • Names

    • Date of commencement

    • Date of continuous service

    • Rate and frequency of pay

    • Hours of work

    • Holiday entitlement

    • Job title

    • Place of work

• If no formal contract or written particulars, can gather other evidence to demonstrate contract

  • E.g. offer letter, handbook and policies, job advert

• Other terms may appear

  • Garden leave

  • Suspension without pay

  • Mobility clauses

    • I.e. may be required to work somewhere else.

  • Variation

  • Right to search

  • Restriction of email/internet

2. Implied Terms

• Implication by:

  • Statute

  • Custom/past conduct

  • Officious bystander test

  • Business efficacy

• Duties upon employer as implied conditions

  • To pay

  • To provide work

    • Arguably no longer exists as long as payment is given. Depends on facts of case, e.g. actor is dependent on publicity from work despite pay

  • Health and safety

    • Reasonable care for employee. Common law, statutory and tortious duties

  • References

    • Duty to take reasonable care if reference given (no duty to provide one)

  • General duty of care

    • Difficult to run

• Mutual duties upon employer and employee

  • Trust and confidence

    • Physical/verbal abuse

    • Harassment

    • Deception

    • False accusations

• Duties upon employee

  • To provide personal service

  • Reasonable skill, diligence and care

  • Good faith and confidence

  • Duty to obey lawful orders (if reasonable)

3. Post termination restraints

• Confidential information

  • Duty can extend beyond contract but is more narrow. Must be:

    • Trade secret; OR

    • So highly confidential as to amount to a trade secret

• Trade secret

  • Faccenda Chicken v Fowler [1996]

    • Look at circumstances to decide what trade secret is.

      • Nature of employment

      • Nature of information

      • Whether employer impressed upon employee the confidentiality

      • Whether information could be isolated from other information which can be disclosed

4. Restrictive covenants

• To prevent someone from doing something once relationship broken down

• Court does not like control of behaviour after contract. Some allowed.

• Prima facie VOID and UNENFORCABLE, UNLESS:

  • No further than necessary

  • Protect legitimate interests of business

  • Reasonable

• Types:

  • Non-competition

  • Non-dealing

  • Non-solicitation/poaching of customers or employees

• Blue pencil test

  • If term too wide but can easily be amended, court will do so

  • Will not redraft a clause

• Reasonableness factors:

  • Duration of restriction

  • Geography

  • Needs/interests of business

  • Duties of the employer

  • Whether a lesser restriction would suffice

• The impact of wrongful dismissal on restrictive...