Form and Content of an Employment Contract Flashcards
s1 ERA 1996
Statutory requirement for ‘written particulars’ of the main terms of employment. Requirement for stating a negative (e..g there are no collective agreements)
Mears v Safecar Security Ltd [1982]
Implied terms in fact (custom and practice)
M was security guard: given a terms of reference document (contract of employment) which had job title, dates, notice, holidays yet no mention of sick pay. Not prepared to look at subjective test - nothing asked beforehand.
Courtaulds Northern Spinning Ltd v Sibson [1988]
Implied terms in fact (custom and practice)
When courts have to imply a factual term, they will have to take it to the lowest common denominator. Moved: would have to work where it was reasonable for efficiency. Held: working in reasonable location to his home; no need for efficiency
s86 ERA 1996
Minimum notice periods
1 week for every year completed (max 12 weeks)
Malone v British Airways plc [2011]
Incorporated terms (collective agreements) Employer and trade union agreement. Crew numbers way above minimum, so paying too much! Claimed that each employee should be able to enforce the minimum crew agreement. Held: couldn't be an incorporated term.
Bateman and ors v Asda Stores Ltd [2010]
Incorporated terms (staff handbooks) Wanted to get all UK employees on the same standard pay terms. Term in actual handbook: 'employer reserves the right to change the handbook', yet some aspects of pay form part of contract of employment. 8.5k wouldn't agree so it was imposed on them. Court held that it was a legitimate flexibility clause as nobody was going to be worse off.
Ticehurst v BT plc [1992]
Duty of fidelity case:
Supervisor was active member of union. Decided to take action against only doing what was strictly required by contract. ‘Say no and ask questions later’. Breach of implied term of fidelity as she was responsible for exercising discretion.
Hivac Ltd v Park Royal Scientific Instrumentals Ltd [1946]
Duty of fidelity:
Covers leisure time: e.g. if you work at a second company. Here, workers decided they would go and work for competing company. They were skilled workers; could be dismissed as against employer’s best interests
Wessex Dairies v Smith [1935]
Milkman decided to tell all customers on his last day that he will be working for a new company and that he’ll deliver to them. Could inject him from doing this as at the time he still worked for the company.
Marshal Industrial Systems and Control Ltd [1992]
M put together a new business plan and entice away new customers. Wanted to start their own business. You aren’t allowed to entice away employees
Faccenda Chicken Ltd v Fowler [1986]
Must not disclose; what you have been told is confidential. There is a reason for the confidentiality.
Sinclair v Neighbour [1967]
Worked in a betting shop. Knew that employer wasn’t going to give him money so took £10 and put in an IOU. Replaced money the next day. Was a justified dismissal.
Duty to account - Boston v Deep Sea Fishing and Ice Ltd [1888]
Managing director entered contract with other company to ice the fish; without disclosing he was a shareholder. Duty to account was absolute so he had to disclose that he was making a profit
Ottoman Bank v Chakarian [1930]
Ordered him to remain in bank in Turkey despite him being subject to death penalty - held not to be reasonable.
Cresswell and ors v Board of Inland Revenue
Manual workers: IR wanted to put in a computer system - less people would be needed. In a different way, not different work so justified. Need training/support.
Collier v Sunday Reference Publishing Co Ltd [1940]
Man/woman not entitled to work, only to be paid. Certain right to work, e.g. footballers - i.e. those who need to exercise skill regularly. Also, those paid according to how much work was done (e.g. Nethermere)
William Hill Ltd v Tucker [1998]
Specialist spread better. Gave notice to join competitor. Told him to go home, T said he had an implied right to work as it could damage his career. Agreed by court.
Walker v Northumberland CC [1995]
Covers physical and mental health: employee constantly had stress and breakdowns
W.A. Goold (Pearmak) Ltd v McConnell [1995]
Jewellers: changed way sales were going to be remunerated. Had huge drop in salary. No grievance procedure and couldn’t get redress for losses. This was held to be a breach.
Malik v BCCI [1991]
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’
Morrow v Safeway Stores plc [2002]
Difficult relationship with store manager. Promotion on in the bakery. Told M off in front of a colleague and some customers. Was justified in telling her off but not in front of those people. M left and claimed constructive dismissal. EAT said that if there is a breach, it must be fundamental, and so agreed with M.
United Bank v Akhtar [1989]
Transfer to Birmingham (8 days notice) - mobility clause. Express term with discretion is subject to implied mutual trust and confidence.
White v Reflecting Roadstuds Ltd [1981]
Not a duty to act reasonably. Physical department and teamwork needed for team bonus. Stopped turning up so really poor attendance. Struggled with the work and given warnings. Asked to be moved yet no vacancies. Had a flexible duties clause. Moved to low-paid dept. No duty to exercise this - duty to act rationally - there was ‘reasonable and proper cause’
Clark v Nomura International Plc [2002]
Bonuses: exercise of discretion. C under notice and bonus dissertation linked to individual performance. His performance was really good and so he should have got his bonus.
Cantar Fitzgerald international v Harkulak [2004]
Constructive dismissal claim. Earning massive amounts yet culture of very strong language. Claimed ‘abuse’ from manager. Can’t say it’s ok because of pay and culture.
