Contract of Employment Flashcards
How true is it, that a contract of employment must always be in writing?
Parties to an employment contract will often but not always, put the terms and conditions that govern the relationship into writing.
There is no legal requirement for the employment contract itself to be in writing.
It can be written, oral or a combination of both.
Parts of an employment contract can also be agreed through conduct.
What does S1 Employment Rights Act (1996) state?
Irrespective of whether a formal contract has been produced, under the terms of Section 1 Employment Rights Act (1996) employers are legally bound to provide employees or workers with a written statement of particulars within two months of date they started their employment.
What does Section 1 (4) Employment Rights Act 1996 state?
Section 1 (4) requires that certain particulars of the terms of employment must be stated.
and whether or not such hours or days may be variable, and if they may be how they vary or how that variation is to be determined.
What should a written statement of particulars include?
Employees are entitled to receive a statement of their employment particulars within two months of starting work.
This sets out your main employment terms, including the job description, pay, hours of work and any disciplinary or grievance procedures your employer has.`
If there is a change in contract terms, what must the employer do?
Section 1 (4) Employment Rights Act 1996 states that if there is a change in the terms of the contract which ought to be included in the statement, then a revised written statement must be provided by the employer within one month.
Contracts of employment cannot be altered without the express agreement of both parties. Therefore, an employer cannot vary the hours or any other condition unless these alterations have been agreed with the employee.
It is essential that employees are fully aware of, and accept, any detrimental changes to their terms of employment if the changes are to be legally binding
How might an employer alter/change/vary a contract of employment?
1) By mutual agreement with the employee, possibly with a cash “sweetener”;
2) Occasionally, the employer may wish to make changes to the employment contract that the other party is less happy to accept. The employer seeks agreement to the changes and dismisses those employees who refuse to agree. The employees who are dismissed may have claims for unfair dismissal and breach of contract.
3) Unilateral variation of contract terms. In circumstances where employers have not managed to agree a change with employees, they might choose to unilaterally push through the change. This action constitutes a breach of contract. In serious cases giving the employee the right to resign and claim constructive dismissal.
4) Employers must write to their staff to let them know about any changes to collective agreements with trade unions or staff associations.
5) Flexibility clauses are terms in a contract that give employers the right to change some conditions of employment, for example relocation.
6) In the absence of agreement or contractual flexibility, employers may find it safer to dismiss staff and offer to re-engage them on revised terms and conditions (sometimes called ‘fire and rehire’).Provided proper notice of dismissal is given or a payment in lieu of notice is made, affected staff will not have a claim for breach of contract (but they may have a claim for unfair dismissal).
The revised contract must be offered to start immediately the old one comes to an end.
What is a unilateral variation of a contract?
In circumstances where employers have not managed to agree a change with employees, they might choose to unilaterally push through the change.
The basic rule is that a unilateral change to terms and conditions of employment made by an employer without agreement of the employee is generally a breach of contract, in serious cases giving the employee the right to resign and claim constructive dismissal.
An employee in such a scenario has a number of options:
(a) stays and sues - continues to work under the new terms but makes clear that he does not accept them and is working under protest, and reserves the right to sue for breach of contract
(b) resigns and claims constructive dismissal and breach of contract – if a breach is serious enough (i.e. fundamental), and the employee resigns as a response to it, he may be able to claim unfair constructive dismissal and breach of contract (up to £25,000 in an employment tribunal) or an unlawful deduction from wages
(c) refuses to work the new terms – thereby forcing the employer to dismiss him or let him continue on his old terms
Any breach of contract action that results from an employee standing and suing must be brought in the High Court or county court (as a contractual claim can only be brought in an employment tribunal once the contract has been terminated).
There is a much longer time limit for bringing a claim in the civil courts – six years from the date of the breach as opposed to three months (plus up to six weeks to comply with the ACAS Early Conciliation rules) in tribunals.
So as long as the employee has made it very clear that he does not accept the new terms and is working under protest, he can take his time in deciding whether or not to sue.
