The contract of employment Flashcards
Written statement of terms
ERA 1996 s1 once worked for one month a written statement of terms must be provided with 2 months
Written statement of terms from April 2020
S1 statement to be provided on day one of employment
What is contained in a written statement
Date of commencement inc any prev employment and continuous employment salary amount and payment info, hours of work/holiday/sick/pension/notice, Job title/description. Place of work, term if not permanent, collective agreements
is a S1 statement the contract for employemet
no - but is evidence of the terms of an employment contract
Changes to S1 statement
S4 era any changes must be made and new statement given at the earliest opportunity and no later then one month after the change
if st 1 not corrected
both parties could be at a disadvantage as neither can deny that the terms are accurate
S1 case law
Glitz v Watford electric 1979
Martin V Solus Schall 1979
Type of terms
Express
Implied
Express Terms
Written into the contract and override implied terms
Implied terms
Not written - presumed intentions of the parties
Implied terms tests
Business efficacy, Officious bystander, Status approach
Business efficacy case law
The Moorcock 1889 (rarely used)
Officious bystander case law
- shirlaw v southern foundries 1939
Status approach
court will imply terms if they appear reasonable in the circumstance - Bank v Akhtar 1989, Judge V Crown Leisure 2005
Conflict between Express and Implied terms
Normally express terms take precedence unless they conflict with tort duties such as duty of care - Johnstone V Bloomsbury Heath 1991
Conflict cases
Johnstone V Bloomsbury 1991 (f)
Reda V Flag 2002 (a)
Collective agreements
S 178 Trade union and labor relations Act 1992- contract can not be silent but separate from the contract
Incorporation by conduct or custom
if parties act on the basis of a collective agreement it becomes incorporated into contacts regardless if the individual is part of the union
Incorporation Case law
Singh v British Steel 1974
Dunlop Tyres V Blows and others 2001
Henry and other V London General Transport 2001 - established changes binding on union members
Express Incorporation
collective agreements only become enforceable when incorporated
Express incorporation Caselaw
National coal board V Galley 1958 (F)
Singh V British Steel 1974 (F)
Work Rules
ie Handbook can be binding - keeley v fosroc international 2006
Custom
widespread - more than a one off - can become part of the main terms is is custom, Employee must know about it.
Has management drawn the policy to the attention of the staff,
Has the policy been followed without exception for a substantial period
Did the employees have a genuine expectation that the policy would be applied to them.
Custom Case law
Quinn V Calder Industrial 1996 (F)
Meek V Port of London 1918(A)
Implied Duties of Employers
Provide work, Wages, Reasonable care, mutual trust and confidence, Proper information, Accurate refereances
Provision of work
No duty to provide work Collier V Sunday Referee publishing 1940
Provision of work exceptions
when employing a skilled person you are bound to provide with work
Failure causes loss of reputation/publicity, Failure leads to reduction in actual/potential earnings
Pay Wages
Although no implied duty to provide work there is an implied duty to provide wages providing-the employee is ready and wiling to work and there is no express contractual term
Pay wages case law
way V latilla 1937 - no express term
Beveridge V KLM Uk Ltd - Express term
Reasonable Care
Safe operating system of work
Safe Tools/Plant/Materials
Adequate supervision
Trained and efficient personnel
Safe operating system of work
adequate warnings, provide safety equipment, Not cause foreseeable danger
Safe Tools/Plant/Materials
Tools/plant/materials must be safe/maintained and inspected periodically
Adequate supervision
conduct of the reasonable and prudent employer, positive thought for safety of workers in light of what is known/ought to be known
Trained and efficient personnel
if person injured by the joke of another can be liable if employer knew the responsible person was prone to such horseplay
Safe operating system of work case law
Thompson V smith ship repairs 1984 (NIHL)
Pape V cumbria CC 1991
Johnstone V Bloombury HA 1991
Safe Tools/Plant/Materials case law
Bradford V Robinson Rentals 1958
Davie V new Meryon Board Mills 1959
Woods v Durable Suites 1953
Crookall V Vickers Armstrong 1955
Adequate supervision case law
Barber V Somerset CC 2004
Trained and efficient personnel case law
Hudson V Ridge Manufacturing 1957
Smith V Crossley Bros 1951
McCready V Securicor 1992
Heath & Safety at work Act 1974
Mutual Trust and confidence
Trust between employer and employee
Mutual Trust and confidence case law
Malik and another V Credit and commerce international 1997
Morrow V Safeway Stores 2002
Ogilvie V Neyrfor Weir 2003
GMB trade Union V Brown 2007
Provide proper infomation
employers owe a duty to keep employees informed about changes, such as pensions or other changes to the employment relationship
Provide proper information case law
scally V Southern Heath and social services board 1991
HRA 1998 - right to private life
References
No duty to provide a reference but must be acurate, Failure to provide under protected characteristics
References Case law - protected characteristic
Coote V Granada Hospitality Ltd 1999
References Case law- inacurate
Spring V Guardian Assurance plc V Others 1994
Harris V TSB 2000
Implied duties of employees
Obedience
Personal service
Reasonable care
Good Faith/Fidelity
Obediance
Reasonable orders within scope of contract
Obedience case law
Pepper V Webb 1969
Wilson V Racher 1974
Obedience case law - unlawful orders
Morrish V Henlys 1973
Obedience case law - outside scope
O’brien V Associated fire alarms 1969
Personal service
Be ready and willing to work - exc sickness
Illegal strike action breaches
Reasonable care
if employee acts negligently , Employee must take reasonable care of property
Reasonable care case law
Lister V Romford Ice & Cold storage 1957
Superflex V Plaisted 1958
Good Faith and fidelity
act in best interests of the company, non compete, non disclosure
Not to disrupt employers business interest
going on strike/go slows
Not to disrupt employers business interest - case law
ticehurst V BT 1992
Work to Rule
not always classed as ind action
Work to rule case law
secretary state for employment v ASLEF (2) 1972
Burgess and other V Stevedoring Services 2002
Duty not to compete
can’t stop employees from having another job but can stop competetion risk of divulging trade secrets
Duty not to compete case law
hivac V park royal scientific instruments 1946
Confidential Infomation
protect employer from employees use of trade secrets - implied duty of good faith
Confidential Info during employment- case law
Robb V Green 1895
United Sterling corp V Mannion 1974
marshall V Industrial Systems and control 1992
Confidential info after employment - case law
faccenda Chicken v Fowler 1986
Inventions and patents
unless expressly written all inventions belong to the employer unless not sole reason for employment or incidental value
Inventions and patents case law
British Syphon company v homewood 1956
Patents act 1977
Duty to disclose
employee has a duty to disclose information of benefit or detriment (if public interest unless in malice)
Duty to account
must account for all money and property during employment
Duty to account case law
boston deep sea fishing V ansell 1888 item software v fassihi and others 2005 tesco v Pook and others 2004 nottingham uni v fishel 2020 Bribery act 2010
