Terms

Question 1

Dresdner Kleinwort

Answer 1

No special formalities – can be express or implied. If express, can be oral or in writing:

company summoned employees together and chief executive was beamed over to them and promised in statement that all of the staff would receive bonus’ when the business was sold. In the event, the amount he promised did not materialise and they got 10% less. Did this broadcast by chief executive cast as an agreement. Held: yes, made event, created broadcast and this speech was clear and precise. Held: binding and they were entitled.

Question 2

Judge

Answer 2

Not merely a statement of intention:

promise made at staff Christmas party. Disagreement between parties as to whether a promise was made by director company that they would have their salary increased over the next two years. Not like Stransky where another employer had contradicted the other. The director said some words of comfort and assurance was said, but this was not “sufficiently clear and precise” to give rise to a commitment.

Question 3

Rock Advertising

Answer 3

A “no oral modification” clause is legally effective, applies to employment contracts: written clause in contract that “no oral modification” was held legally effective. No evidence to suggest not true agreement between them.

Question 4

Galley

Answer 4

collective agreements can have a normative effect as external sources of the terms of the individual contract of employment – a “bridging term”: express term agreed by parties collective employment said pay would rise. Contract of employment refers to collective agreement.

Question 5

McQuilken

Answer 5

Appropriateness of terms for incorporation – must be appropriate for the terms of the contract of the employee: procedural clause. Clause saying “if there was a likelihood of redundancy then employees should be put into summary training. This clause held:not suitable because procedural matter, even though it is important

Question 6

Kaur

Answer 6

an aspiration collective agreement between trade union and MG Rover that no compulsory redundancies. Held: CA on the basis that an individual threatened by redundancy could not argue that was put into individual contract of employment, it was an aspirational clause, that ideally wouldn’t have compulsory redundancies.

Question 7

British Airways

Answer 7

objective test set out number of cabin crew to be employed on aircraft. When BA then unilaterally reduced the crew as to whether it arose, was it suitable for incorporation? Held: set against the “disastrous economic consequences”, which could ensue if this term were to be enforceable, it can be see that it is no more than an objective. As such, it should be construed objectively in light of factual matrix in which the agreement was made. Held: parties did not mean this term to be individually enforceable.

Question 8

Keeley

Answer 8

statement in employees handbook? Is this contractual, part of individuals contract? Similar to collective agreement but employer cannot say this is not what they intended. Contract of employment mentioned staff handbook which stated “provision for enhanced redundancy payment over and above the statutory minimum”. Was this rule in handbook put into employment contract. CA held: clear language in the provision that it was expressed as an entitlement and fell within section of handbook of “employee benefits” so indistinguishable from other employer rights and part of the contract.

Question 9

Sagar

Answer 9

Incorporation of less formal ‘custom and practice’ that is widely known and observed in the plant or trade and where the parties contracted on the assumption that a clear and specific term derived from that source would form part of the contract of employment: deductions for ‘careless work’wages were deducted for careless work, this was not written down, it was a practise of the mill owner. When challenged, even though employee in question did not know of it, it was sufficient to be term of the contract. This is why parliament introduced s1. THIS IS NOW OUTDATES. Now if they want such provision, it will need ot be in the statutory written statement.

Question 10

Shumba

Answer 10

Incorporation of less formal ‘custom and practice’ that is widely known and observed in the plant or trade and where the parties contracted on the assumption that a clear and specific term derived from that source would form part of the contract of employment: modern approach concerned, claimants argument that they were contractually allowed payment for redundancy because longstanding practise of making additional redundancy payments. Here it was custom and practise unlike promise in handbook. CA Held: sufficient evidence in conduct that such a benefit was being made available to employees over a period. Approach should be OBJECTIVE, not just subjective, but how term was objectively applied. If employer did not want the term to have an objective effect they should have made it clear to the employee. Possible for such a practise to be regarded as amounting to something which could be incorporated into the contract.

Question 11

System Floors v Daniel

Answer 11

employees asked to sign written statement containing incorrect date of employment. Held: evidence it might provide was rebutted. Ounius of proof on the employers to get it rebutted. . Simply signing the written statement did not amount ot forming part of the contract. It was merely a receipt and not part of the contract. CA : written statemen in absence of other evidence of contract terms is “persuasive but not conclusive terms of the written contract” and in face of this evidence may not constitute written contract of parties and may be rebutted. It is useful for transparency.

Question 12

Barber v RJB Mining

Answer 12

Example of where maximum working week (48 hours) was incorporated into contract of employment by virtue of statute by basis that employee did not sign an opt out of the 48 hours.

Question 13

Abdulla

Answer 13

If contractual term sets a wage level below minimum wage, it would be overridden by minimum wage. This is statute coming in to provide protection.

Question 14

Mears v Safecar

Answer 14

employers s1 statement of particulars did not state whether the employee was entitled to sick pay. Employment tribunal took view that sick pay of some form was a necessary incident of employment relationship. It is what the parties WOULD have agreed, unless the employer can show otherwise. CA agreed. Tribunal can imply missing terms beyond commercial contracts because these are terms particular to an employment relationship. Necessary to consider all facts and whether “sick pay” was a “necessary incident”, which is was.

Question 15

Johnstone v Bloomsbury

Answer 15

case that predates the working time regulations (fixed maximum working hours). At time of case, no maximum working hours that employees were limited to. Junior hospital doctors whose standard hours were 40 hours per week, but could be required to work over 48 hours overtime. Doctors brought action, express term was clear they agreed to work 88 hours a week. But held: this was unreasonable, because term implied into all contract that’s there is a duty of care owed to employee in regard to their health/. If tribunal was satisfied that the working hours was dangling their health, they would be allowed to imply this term. CA held: implied terms are capable of co existence without conflict. Option to work beyond 40 hours had to be exercised reasonably with regard to employees health and safety. Beyond 40 hours, the extra time had to be exercised reasonably with respect to the employees health and safety/ The extra hours express term is not overriding but needs to be in regards to health and safety. Now statute kicks in and would override any express term that is contrary.

Question 16

Cresswell

Answer 16

The employee must obey the lawful and reasonable orders of the employer within the scope of the contract – part of the managerial prerogative – a duty to co-operate:

introduction of new technology was compatible with contract – employee refused to use the computer and to be trained. Found: introduction of new technology, employer was allowed to introduce this and employee should be expected to use this in absence of evidence that it was not appropriate.

Question 17

Bull

Answer 17

The employee must obey the lawful and reasonable orders of the employer within the scope of the contract – part of the managerial prerogative – a duty to co-operate: However, situations where order is unreasonable or unlawful.

fire authority instructed its employee firefighters to respond to emergency calls where an ambulance was required but could not be deployed quickly enough. The CA held that fire authority had no right to do so because although the fire fighters had first aid skills, their job was to fight fires and responding to ambulance calls could not be regarded as a part of this job.

Question 18

Hivac

Answer 18

(c) Fidelity – employees day job was to work for PRSI but in evenings, they worked for rival company, who produced same products. Held: breach of fidelity because carrying out a deliberate action which damaged the employers business.

Question 19

Neary

Answer 19

(c) Fidelity senior organist at Westminster abby, he was secretly recording performances and he had a business in producing CD’s and selling them. He did not disclose this to the abby, and found to be a breach of a specific fiduciary duty which reflected the fact that he was in a position of seniority.

If you are in a position of seniority you may have a Fiduciary duty to their employer which could include: not disclosing confidential or protected information

Question 20

Brown v Corus

Answer 20

4.5.2 Duties of employers (a) Skill and care known risks to health employee should not be expected to work in serious conditions when there is a known damage to physical health

Question 21

Johnstone

Answer 21

Duty of employers to exercise reasonable care – implied term or a tort:

Johnstone v Bloomsbury Health Authority [1991] IRLR 118 – duty of care to protect the health and safety of employees

Question 22

Walker v Northumberland

Answer 22

The employer’s duty of care in respect of employee’s mental healt.

In this case, he suffered a nervous breakdown due to overwork. When he returned to work, he was given extra support but then this was withdrawn, his workload increased and he became ill again and then dismissed. Held:

reasonably foreseeable risk to the employee’s mental health​

Question 23

Hatton

Answer 23

4.5.2 Duties of employers (a) Skill and care can include claims based on work-related stress. Lady Justice Hale gave lead judgment which concerned, work related stress. ork related stress, breach of duty of care? Held: - Anchored to principle of negligence and the duty of care – so the principle of negligence. Duty of employer can extend

Question 24

Waters

Answer 24

4.5.2 Duties of employers (a) Skill and care Complaints made by female police officer, alleged that a male college was sexual harassing her and that he had sexually assaulted her outside work. Allegation of sexual harassment was inside work place, sexual assault happened outside work. Question – did police have responsibility in the matter. Held: even though sexual assault took place outside work, there was a connection between that and the sexual harassment which was ongoing, it had been reported and the employer, applying reasonable steps test had a common law duty to take adequate steps to protect employees against such treatment. SO tortious liability could apply if negligence could be shown.

Question 25

University of Nottingham

Answer 25

4.5.2 Duties of employers (a) Skill and care Linked to Equality Act. Where employee alleges to have been harassed or attract, even outside workplace have to investigate thoroughly

Question 26

Spring v Guardian Assurance

Answer 26

4.5.2 Duties of employers (a) Skill and care Care and skill in preparing references and making them available to third parties – duty extends to former employers and to the new employer: supplied reference to suspected employer which was not accurate and contain statement harmed to them. What duty does employer have when writing reference. Held: employer has a duty of care when writing reference but “honest, frank and robust views, so long as they are correct about the factual content and opinion”. Have freedom to be critical but must be honest and critical. Relfects importance of reference to recipitient.

Question 27

McKie

Answer 27

excellent reference followed by a contradictory email about M’s suitability to work as a teacher from the former employer after the employee had started his new job – was a causal link between the negligence of the former employer and the decision of the new employer to dismiss him . McKie left with good reference, bath employed him on basis of this reference, some time later, he was asked to run a course at Swindon collage. The HR at the collage sent an email saying they were not prepared to allow the teacher to go back to the collage due to serious concerned. The university then dismissed him and sued the collage for negligent misstatement on basis statement was not supported by evidence. Showed that the collage, notwithstanding number of years that passed, still owed duty of care as former employee, and economic loss was unforeseeable due to intervention by HR.

Question 28

Malik v BCCI

Answer 28

(b) Trust and confidence Therefore, whereas it is a duty of trust to co-operate to make the contract work – on the part of the employee, to help the efficient running of the business - on the part of the employer, there is a duty not to breach trust and confidence. – test based on an objective assessment of the impact of the employer’s behaviour on the employee rather than what the employer had intended – followed in: bank collapsed due to a huge amount of fraud. Malik was a senior employee not involved in fraud nor aware of it. However, he lost his job and argued that senior management by perpetrating fraud and concealing it from senior employees and public had destroyed the mutual trust and conference. Held: lord steyn – ruled that the test will apply based on object assessment of the impact of the employers bahviour on employee rather than what the employee had intended. Objective test. By saying it is not a subject test (bank would have said they did not mean to harm the senior employee), what mattered was looking at it objectively by saying “what is the impact of the bahvaiour on the employee. IT IS AN OOBJECTIVE TEST LOOKING AT THE IMPACT ON the employee. Failure to disclose was serious

Question 30

Catamaran Cruisers

Answer 30

Variation of terms:

The tribunal must consider the balance of advantages to the employer and set that against the disadvantages to the employee.

Facts: dismissal and re-engagement on new terms.

Question 31

Docherty

Answer 31

Variation of terms:

Where the change involves significant disadvantages to the employee, the courts tend to be more inclined in their favour. Facts: employer in financial difficulties, putting its employees onto “zHC” for two months. They were required to remain available to work but were not guaranteed any particular level of work and pay. If the process is unfair, looking at the type of employee status (ZHC means they loose employee status and rights) and informing and consulting other employees. If the process is unfair, the dismissal may be unfair on procedural grounds.

Question 32

Bateman

Answer 32

Express clause allowing for unilateral variation

The employer had an express right to vary the content of its staff handbook unilaterally. This included contractual matters such as pay and hours. The EAT held: that it was entitled to do so under the unilateral variation clause. The clause was clear and unambiguous. It rejected arguments that the clause should be construed in the light of Autoclenz in the sense that the written handbook might not have reflected the “true agreement” between the parties.

Question 33

Dresdner Kleinwort

Answer 33

Express clause allowing for unilateral variation

employer promised to pay bonus. According to the employee handbook, it had the power unilaterally to vary the employee’s terms of employment. The employer announced the change orally. When bonuses were eventually paid it was lower than originally offered. Employer argued that it had no given a contractually binding promise to pay the bonuses because it had not followed the procedure for varying the contract laid down in the staff handbook which required variation in writing. However, the court held that the variation was effective because it had been announced clearly and there was no doubt that the employer intended it to be legally binding. Employer had breached the implied term of mutual trust and confidence by going back on its original promise to pay the bonuses.

Question 34

Roger Bullivant

Answer 34

Post employment restraints:

Term is void unless it is shown to be reasonable:

There was a clause in the ex-employee’s contract prohibiting him from contacting the dormer employer’s customers with a view to doing business with them for 12 months after the termination of his employment. When employee left, he took a list of customers. The employer successfully obtained an injunction to stop the ex-employee using the lit for his own rival business. This showed the importance of geographically and temporally.

Question 35

Mundey

Answer 35

Post employment restraints:

Term is void unless it is shown to be reasonable:

The court refused to grant the former employer an injunction restraining ex-employees from competiting, in part because the former employer had not sought to limit the geographical area in which the injunction would have applied.

Question 36

Sunrise Brokers

Answer 36

The impact of the clause on the employee is relevant in some cases. Here, the employee refused to continue working for the employer during the period of the restraint, so he was not earning any money during that time. He argued that it would be oppressive to grant the employer an injunction becauseit would force him to go back to work for the employer. Held: no evidence of hardship if injunction was granted.

Question 37

Jones

Answer 37

implied mobility term. The respondent employers had not committed a breach of contract by seeking to transfer the appellant employee to another place of work. The Industrial Tribunal had correctly concluded that there was an implied term in the appellant’s contract of employment to the effect that the respondents had the right to transfer him to any site within reasonable daily commuting reach of his home. A contract of employment cannot simply be silent on the place of work. If there is no express term, it is necessary to imply some term into each contract of employment laying down the place of work in order to give the contract business efficacy. The term to be implied is that which in all the circumstances the parties, if reasonable, would probably have agreed if they had directed their minds to the problem. The employers were in business as contractors working at different sites, so that the parties must have envisaged a degree of mobility. The appellant himself had been previously moved from his original place of work without objection