#15483 - Express And Implied Terms - Employment Law

Express and Implied Terms

Express Terms:

• Written particulars (s.1 ERA & s.2 ERA)

• Other express terms:

  1. Right to suspend without pay

  2. PILON clause

  3. Mobility clause

  4. Vary contract terms (limited effect)

  5. Search an employee

  6. Dismiss without notice where gross misconduct

  7. Post-employment restrictive covenants/confidentiality clauses

• Policies (non-contractual):

  • Many disciplinary and grievance policies mirror the minimum standards set out in the ACAS Code.

• Oral agreement

Implied Terms: courts imply only if necessary

• Statute: s. 86 ERA 1996, equal pay clause, Working Time Regs.

• Custom/practice

• Officious bystander test (so obvious that parties would have agreed this term had they been asked to)

• Business efficacy test (to make the contract workable)

Duties owed by employer

• Duty to pay - silent contract = employee entitled to reasonable remuneration.

  • Claims under National Minimum Wage Act 1998

    • Workers aged between 21 and 24 years of age should receive pay of 6.95 per hour

    • 25 or over = 7.20 per hour

• Duty to provide work

  • William Hill v Tucker [1999]: in publicity-based or commission- based careers there will be a duty to provide work.

• Duty to take reasonable care for the employee’s health and safety

  • Common law & Health and Safety at Work Act 1974

• Duty to take reasonable care in giving references

  • Not obliged to provide references at all.

  • If one is provided, a duty of care is owed.

  • True, accurate and fair reference which must not give a misleading impression. There is no obligation to go into any detail or for the reference to be comprehensive (Spring v Guardian Assurance plc)

Duties owed by employee

• Duty to provide personal service (& not deliberately disable themselves)

• Duty to work with reasonable skill, care and diligence

• Duty of good faith and confidence (faithful service, not acting against best interests of employer and not to disclose confidential info)

• Duty to obey lawful orders (cannot put employee in danger)

Mutual duties

• Trust and confidence

Varying employment contracts

• Unilateral variation by employer:

  • Employee acquiesces

  • Employee resigns on basis of constructive dismissal

  • Employee refuses to comply with change (employer can dismiss, employee can bring a claim)

  • Employee can stand and sue

• Dismissal and re-engagement:

  • Terminate old contract and issue a new one

  • Runs the risk of employee not accepting new terms (can claim for wrongful and unfair dismissal)

  • Even if employee accepts new contract they can still claim since they were dismissed under the old contract

Post-Termination Restraints

• Garden leave (paid but not required to attend workplace)

• Garden leave can be enforced by garden leave injunction

Confidential Information

• Implied duty of good faith encompasses a duty of confidentiality.

• During employment

  • Cannot disclose trade secrets

  • Cannot disclose information regarded by employer as confidential

• Once employment ends

  • Cannot disclose trade secrets

  • Cannot disclose highly confidential information (requires same protection as trade secret)

Trade secret = Faccenda Chicken Ltd v Fowler (1986): examine all circumstances, particularly:

1. Nature of employment and employee

2. Nature of information

3. Whether employee impressed on employee confidentiality of info

4. Whether information can be easily isolated from non-confidential info

Express confidentiality clause

• Will not go further than implied duty but may be useful as a deterrent/aid to interpretation

Restrictive covenants

• all restrictive covenants are prima facie void and unenforceable unless they:

  1. protect a legitimate interest of the business; and

     • E.g. trade connections, trade secrets, stability of workforce

  2. go no further than is reasonably necessary to protect that legitimate interest.

     • Consider duration of restraint, geographical restraint, needs/interests of business, duties of employee, would lesser protection suffice?

     • Consider duration of garden leave clause (can deduct garden leave from restricted period)

• Common covenants:

  • Non-competition (most onerous)

  • Non-dealing

  • Non-poaching/solicitation (least onerous)

• Blue pencil test: court will strike out unenforceable part and only enforce the remainder of the covenant if it make independent sense.

• Wrongful dismissal = restrictive covenants unenforceable.

  • Provide for termination in cases of repudiatory breach

  • Provide for PILON

• Remedies - bring in ordinary courts:

  • Damages

  • Injunction (discretionary) - American Cyanamid

  • Springboard injunction (prevent commercial advantage where confidential info already disclosed)

The Working Time Regulations 1998

• Applies to workers (Reg. 2)

• No more than 48 hours per week on average over a reference period of 17 weeks - (Reg. 4) - workers can opt out by written agreement.

• “Working time” = employee is working, at the employer’s disposal and carrying out his activities or duties (Reg. 2)

• Paid annual leave (Reg. 13 and Reg. 13A)

  • All workers are entitled to 5.6 weeks’ paid annual leave (equating to 28 days for a full time worker)

  • Eight bank holidays in England and Wales count towards the statutory entitlement of 5.6 weeks and are not additional

  • Reg. 16 = workers must be paid a week’s pay for each week’s leave

  • Employer may not pay a worker in lieu of annual leave, except on termination of his employment (Reg. 13(9)(b))

  • Employer cannot allow roll over of holiday entitlement (Reg. 13(9)(a)) - but this can be agreed in employment contract.

  • Reg. 15 = worker must give notice of at least twice as long as the amount of leave requested.

    • Employer's counter notice must be at least as long as number of days leave refused.

    • Employer must give notice if requiring employee to take leave.

  • Accrual of leave: Stringer v Revenue & Customs Commissioners

    • entitlement to paid holiday does accrue whilst an employee is
      absent on sick leave, BUT

    • it is for the member states to decide whether workers may take their holiday while they are on sick leave; AND

    • after termination of the contract, workers are entitled to a
      compensatory payment to reflect accrued but untaken holiday leave, even when on sick leave for the whole year.

  • Reg. 13(9): where a worker falls ill before or during a period of pre-planned annual leave, the worker (if he so requests) must be granted a replacement holiday period.

  • Part-time workers and bank holidays:

    • Government guidance states that bank holidays may have to be pro-rated for part-time staff.

• Rest periods

  • Daily rest: Adult workers are entitled to 11 consecutive hours’ rest in each 24 hour period (Reg. 10).

  • Weekly rest: Adult workers are entitled to a rest period of 24 hours in each seven day period (Reg. 11).

  • Rest breaks: After six hours at work, a worker is entitled to a rest break no shorter than 20 minutes (Reg. 12).

• Night Work (Reg. 6)

  • Night time = seven hours which includes midnight to 5 a.m. (Reg. 2)

  • Night worker = works at least three hours during night time

  • Normal hours should not exceed an average of eight hours in every 24 hours during a 17-week period.

  • Entitled to free health assessment before being assigned night work & free health assessments at regular intervals.

• Exceptions: but annual leave provisions will still apply

  • Unmeasured working time (Reg. 20)

  • Special cases (Reg. 21 subject to compensatory rest - Reg. 24)

• Enforcement and remedies: Reg. 30 --> Employment Tribunal (within 3 months)

• Sunday - shop and betting shop employees can opt out of working on Sundays (Reg. 40) and have a right not to be dismissed as a result (Reg. 45)

  • Enterprise Act 2016 = 2016 further benefits: only one month notice of opt out instead of current three, etc.