Formation of Contract of Employment

Question 1

s 230(2) ERA 1996

Answer 1

If a contract of employment is express, it can be oral or in writing.

Question 2

Hounga v Allen

Answer 2

Illegality has been applied as a pre-requirement for valid contract of employment.

H came to UK illegally and was employed in very poor conditions by A, effectively treated as a modern day slave. SC held that since H was in the UK illegally, she could not form a valid contract of employment - therefore her claims on the basis of statutory entitlements requiring employee status failed.

Question 3

s 1 ERA 1996

Answer 3

Duty on employers to provide a written statement of terms of employment after qualifying period of 3 months. This does not override the contract of employment - just a written statement of terms.

Written statement must include:
- names of parties
- scale of remuneration
- hours
- job title 
etc.

Question 4

Secretary of State for Employment v ASLEF

Answer 4

Implied term of the employee’s duty to serve the employer faithfully within the contract of employment. Employees breached duty here by carrying out every single duty very meticulously and slowly in order to cause delays.

Question 5

Cresswell v Board of Inland Revenue

Answer 5

Implied term of obedience in contract of employment - employees have a duty to comply with reasonable requests of the employer, provided that the employer enables them to do so.

Therefore, employees had a duty to participate in computer training since employer provided them with means.

Question 6

s 66(1) EqA 2010

Answer 6

Sex equality clause - if there is no express sex equality clause between employer and employee, then this is implied into the contract.

Question 7

Johnstone v Bloomsbury HA

Answer 7

Stuart Smith LJ said that express contractual terms must be read in light of implied contractual terms. CA majority held that the implied term of duty of care on the employer must prevail over the broad express term in which C had very long working hours.

Question 8

Malik v BCCI

Answer 8

HL held employees could claim stigma damages for breach of implied term of mutual trust and confidence due to employer’s high-scale corruption. Lord Steyn was clear that these implied terms operate as default rules, and can be modified expressly by the parties.

Question 9

Scally v Southern Health and Social Services Board

Answer 9

Implied duty on the employer to explain all of the employee’s rights under the contract of employment, since the employee could not be reasonably expected to be aware of them.

Facts - employees were not aware they could top up their pension contributions in order to qualify.

Question 10

Bateman v ASDA

Answer 10

ASDA made wide changes to working hours and pay of employees. ASDA did so unilaterally, relying on a term in the company handbook which allowed them to change employment conditions to reflect the changing needs of the business.

EAT held that a company handbook is a contractual source and therefore ASDA validly retained the power to vary the contract, even if the employees disagreed with the changes. ASDA under implied term to exercise this power reasonably - did so because of widespread consultation of employees on the changes. Consultation also complied with implied term of mutual trust and confidence.