Terms COPY Flashcards
Mears v Safecar
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.
Kaur
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.
System Floors v Daniel
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.
Sunrise Brokers
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.
Catamaran Cruisers
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.
Brown v Corus
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
Malik v BCCI
(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
Spring v Guardian Assurance
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.
McQuilken
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
Johnstone v Bloomsbury
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.
British Airways
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.
Mundey
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.
Jones
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
Sagar
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.
Judge
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.
