| Intro | Contractual relationship, express and implied terms (e.g. indemnity clause and anti-discriminatory clause implied) Governed by the law of contract as well as common law and statute therefore Outcomes: |
| Formation | |
| Activity 1 – creating the contract | |
| There is no correct answer as different employers have different recruitment processes Formed before the employee starts… As the requirements of a valid contract are satisfied: There is consideration as the employer has expressed a wish to pay the employee for their service, and since an employment contract is a commercial contract, there is a presumed intention to create legal relations |
| Terms of the contract | Three types of terms in the contract: express, implied terms by common law (implied as a result of case law built up over a number of years) and terms implied by statute Can be difficult to ascertain the express terms since not all employers write everything down However s.1 Employment Rights Act 1996 requires employers to provide a written statement of terms and conditions |
| Activity 2 – The contract | That list is straight from s.1 If some of these do not apply to the employee in question, the statement must state which terms do not apply; the statement may also refer to other documents (e.g. pension scheme) Must be given to the employee within 2 months of commencement of the employment; if this doesn’t happen the employee can apply to the tribunal who will determine what those terms should be The written statement is NOT the contract of employment explored above; it is evidence of the key terms of employment and can be useful in a dispute The statement is not needed if the employer provides the employee with a written contract covering all of the s.1 requirements |
| Activity 3 – Terms implied by common law | Employer’s Duties: Employee’s duties: To follow employer’s instructions To carry out duties personally To indemnify To carry out duties in a safe manner |
| The duty of trust and confidence | Applies to both employers and employees; means the parties must not do anything to undermine the mutual trust and confidence that should exist between the employer and employee Developed in case law (created; finalised) |
| Activity 4 – the operation of the duty | Yes – Likely to damage relationship – effectively a demotion making him feel surplus to requirements; employer should have made provisions for him Barry will make a personal profit from the work and has put himself in direct competition with his employer; also used his knowledge of the firm’s pricing structure to exploit them; definitely a breach Entitled to speak to the staff about time keeping but should not have done so in public and should have given Simon chance to explain; instead she has undermined him; breach |
| Statutory implied terms | An express term will usually override on implied by statute; however not always in employment law – terms implied by statute and the implied duty of trust WILL OVERRIDE any express term that offers the employee less protection; if it offers the employee a greater level of protection, it will be fine E.g. can’t agree a notice period that is less than the statutory minimum, but can agree a longer period of notice The other terms implied by common law (i.e. those other than the duty of trust and confidence) CAN be overridden by agreement |
| Competition, trade secrets and confidential information USE THIS FOR EXAM, GOOD SUMMARY | Relationship of trust – employee may have access to confidential information; employees may want to take advantage of this and set up a competing business or work for a rival By using a combination of implied and express terms may be able to restrict this and protect the business Implied terms – duty of trust and confidence One aspect of this is the duty of fidelity (or duty of good faith) – this restricts the employee’s actions during and after employment; they must not let their own interests conflict with that of their employer or compete with them; they must also respect their employer’s trade secrets or confidential information Competing with employer - Taking another job may not necessarily breach this, but where the employee has access to information that would be beneficial in this second employment may be (Nova Plastics Ltd v Froggett – odd job man dismissed when employer found out he was doing other work in his spare time; not a breach provided that he didn’t harm the empoyer’s business; HOWEVER see Hivac Ltd v Park Royal Scientific Instruments where a skilled worker working for a competitor on a Sunday was in breach of the duty of fidelity; danger that confidential information could have passed) Conflicting interests - Employee must not allow his own interest to conflict with the employer’s so must not, for example, memorise or copy down lists of customers or contracts Confidential information – covers trade secrets and items the employer himself has labelled confidential After employment ends the duty is greatly reduced – only stretches to trade screts and highly confidential information – does not stop the employee competing with the employer Whether the information is highly confidential, you must take into all of the circumstances of the case, in particular: General knowledge such as pricing structure, as seen in this case, will therefore not be confidential (free to use it in competing business) Conclusion: Good during employment but NOT after the employment ends… SO let’s look at some EXPRESS terms that could be used. |
| EXPRESS Terms – Covenants in restraint of trade Non-competition covenants – prevents former employees from setting up a competing business or working for a competitor within a certain geographical area for a certain period of time Non-solicitation covenants – Prevents an employee contacting his former clients with a new job… this does not prevent the employee from working, the employee can get another job but cannot contact those customers Non-dealing covenants – stops an employee entering into any contract with customers of their former employer even if the approach comes from the customer Non-poaching covenants – stops them convincing members of staff to follow them from the old employer to the new employer Important to note that employers cannot put blanket restrictions on employees not working or not setting up competing businesses… a balance has to be created between protection of employer and allowing employee to make a living So the court assume that all of the above covenants are...
|
