Employment Contracts

Question 1

Statute for written particulars

Answer 1

s1, necessary requirement, includes things such as pension, place of work, names of employers/employees, start date

this is not a contract but provides evidence of one

Question 2

what is an express term

Answer 2

terms agreed between parties

These prioritise over implied terms but they are heavily subscribed by them

Question 3

Categories of implied terms

Answer 3

o Terms implied ‘in fact’ (not done many cards on this)
o Terms implied by law (no notes on this)
o Terms implied by statute

these are for employees only

Question 4

Example of express and implied term together

Answer 4

Flexibility clause give the employer the right to move a employee, an implied term by law (minimum notice period s86) puts limitations on this

Question 5

what are terms implied by fact

Answer 5

they fill gaps in the contract

Question 6

Case, test and facts related to terms implied by fact….

Answer 6

Custom and practice test, Mears v Safecare Security

• contract said nothing about sick pay. Colleagues said they never got sick pay. C said because it was silent on that matter they should provide it. Court needs to fill this ‘gap’ in the contract. Held because they have never given sick pay they didn’t need to give it to C

Question 7

Terms implied by statute examples

Answer 7

• Minimum notice periods – S86 ERA
  o Example: if a contract says that an employee must give notice of a month, the employee can ignore it due to this provision
• Limits on working time – Reg 4(1) Working Time Regulations 1998

Question 8

What is an incorporated term

Answer 8

terms incorporated by collective agreements, staff handbooks(other documents)

These are good because they allow policies to be kept up to date because contracts cant be changed unilaterally

Question 9

case related to staff hand books + ruling

Answer 9

Bateman v Asda - handbook reserved the right to reflect changes in the business, including pay. A few people lost a minute about of money in a payment merger and argued breach of contract. Held no, because of the handbook right

Question 10

What are the implied duties on an employee

Answer 10

• Duty of fidelity
• Duty to obey reasonable and lawful orders
• Duty to be adaptable
• Duty of care to exercise reasonable care and skill in carrying out work
• Duty of mutual trust and confidence

Question 11

What are the duties on an employer

Answer 11

• Duty to pay wages (don’t do this on this course)
• Health and Safety
• Duty to give reasonable notice
• Duty to ensure health and safety
• Duty to deal promptly with grievances
• Duty of mutual trust and confidence – (most important)

Question 12

what is duty of fidelity

Answer 12

if an employee does something without the employers permission they will be in breach of the fidelity duty.

Question 13

What are the aspects of duty of fidelity

Answer 13

Not to compete
Not to solicit customers
Not to entice away employees
Not to misuse the property of the employer
Duty to account
Not to disrupt the business of the employer:

Question 14

Case for ‘Not to disrupt the business of the employer’ (employee duty)

Answer 14

Ticehurst v BT -

• FACTS: an industrial dispute arose with the employees. The union advised the employees to say no first and deal with the consequences later. Mrs Tiehurst was dismissed for this, BT argued they were entitled to do this because she was working in a way that was disruptive to the business.
• HELD: CA agreed and held this behaviour was a breach of her duty of fidelity. The facts she was a manager and others may follow her behaviour contributed to this.

Question 15

Case for not to compete (employee duty)

Answer 15

• Hivac Ltd v Park Royal Scientific Instruments Ltd [1946]
• FACTS: the employees were in breach of their duty of fidelity because they were using their skills in private for the benefit of a competing company.

Question 16

Case for not to solicit customers (employee duty)

Answer 16

• Wessex Dairies Ltd v Smith [1935]
• FACTS: Smith was a milkman. On his last day he delivered milk accompanied by a note saying how he was available to still deliver milk bu from a different company. This was soliciting customers as he was still employed by Wessex Dairies because it was his last day.

Question 17

Case for not to entire away employees (employee duty)

Answer 17

• Marshal v Industrial Systems and Control Ltd [1992] IRLR 294 EAT
• FACTS: Marshal and another set up a competing business with their current employer. They drew up a business plan and intended to solicit employer’s best customers. They approached a senior employee of the old company and this was held to be enticing employees.

Question 18

case for not to misuse the property of the employer (employee duty)

Answer 18

• Sinclair v Neighbour [1967] 2 QB 279 CA
• FACTS: this has been described as a harsh case. The employee needed to buy something urgently. He borrowed money from the till and placed an IOU, he later replaced the money. He was dismissed.
• HELD: he had not been unfairly dismissed as he had misused the property. It has been said this is a harsh decision.

Question 19

case for duty to account (employee)

Answer 19

• Boston v Deep Sea Fishing and Ice Ltd v Ansell [1888]
• FACTS: director of a company put out a contract for ships for different contracts. He had to account for profits for both of his employees.

Question 20

Act relating to employers health and safety duty

Answer 20

HSWA 1974

Question 21

Case relating to Health and safety duty

Answer 21

• Walker v Northumberland CC [1995]
• FACTS: C suffered a mental breakdown due to an excess of work. When he returned to work he asked for help, wasn’t given it and had another break down. He was dismissed due to ill health.
• HELD: D had breached his duty to take reasonable steps to protect C’s mental health which would have made a safe environment.

Question 22

Case relating to grievance duty

Answer 22

W A Goold (Pearmak) Ltd v McConnell [1995]

• FACTS: case involved jewelers who sold on commission. They changed location which affected how much they could sell, they raised a grievance and didn’t raise a substantive response. The managing director said he would deal with it at a later date.
• HELD: they had been constructively dismissed because they had breached their duty to deal with grievances

Question 23

Is there a duty to provide work?

Answer 23

No, UNLESS

• If they depend on publicity for their living e.g. those in theatre.
• They have a specialist skill

Question 24

Case relating to employers duty to provide work

Answer 24

• William Hill Ltd v Tucker [1998]
• FACTS: they were bound into a 3-month contract with WH. WH put Tucker on garden leave, they did not have a clause which expressly allowed them to do this. Tucker successful argued that because he had specialist skills he needed to use them on a regular basis or he would lose his marketability.
• HELD: WH were in breach of contract and Tucker could leave without serving notice

Question 25

Explain the duty of mutual trust and confidence

Answer 25

extends to employer and employee (rarely relied upon by employer, mainly employee in constructive dismissal)
This is a fundamental breach

Question 26

Key case for duty of mutual trust and confidence and quote

Answer 26

• Malik v BCCI [1997]:
• An employer will not, ‘without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’

Question 27

Morrow v Safeway stores

Answer 27

a breach of mutual trust and confidence is ALWAYA fundamental (cannot be a minor breach)
This breach can occur even by mistake

(D accidentaly shouted at her)

Question 28

United Bank v Akhtar

Answer 28

• Mr Akhtar claimed constructive dismissal when he was told to move from Leeds to Birmingham to work in 6 days.
• Despite the fact that there was a mobility clause (an express term) in his contract, the employment appeal tribunal (EAT) found it unreasonable (Malik) for the employer to expect the employee to move within the six-day time frame. In other words, it said that the implied term of trust and respect overrode the express term of the contract.

Question 29

White v Reflecting Roadstuds Ltd

Answer 29

• D asked to move departments as there was better pay, it was too physical, and he asks to be moved back. There’s no room so he is moved somewhere which requires a 50% pay cut. He resigns and says there has been a breach of mutuality and trust.
• This move was rational and not unreasonable on the part of the employers, thus meaning there was no breach of contract because an employee loses money.

Question 30

• Cantor Fitzgerald International v Horkulak

Answer 30

• C claimed constructive dismissal following an episode of abuse about a presentation and was not paid his bonus.
• Held there had been a breach of mutual trust and confidence. The boss had not been reasonable or professional in his comments about the presentation and not paying the bonus he was entitled to.