Express Implied Terms And Post Termination Restraints Notes

Express/Implied Terms and Post Termination Restraints

1. Express Terms

• S.1 Employment Rights Act 1996

  • At beginning of employment, employer must give written statement of particulars of employment within 2 months

  • Can bring claim asserting failure but failure does not give rise to claim on its own

  • Written particulars which statement must contain:

    • Names

    • Dates

    • Continuous employment periods

    • Pay

    • How calculated

    • Hours

  • S.2(4) ERA – some items must be in ONE document:

    • Names

    • Date of commencement

    • Date of continuous service

    • Rate and frequency of pay

    • Hours of work

    • Holiday entitlement

    • Job title

    • Place of work

• If no formal contract or written particulars, can gather other evidence to demonstrate contract

  • E.g. offer letter, handbook and policies, job advert

• Other terms may appear

  • Garden leave

  • Suspension without pay

  • Mobility clauses

    • I.e. may be required to work somewhere else.

  • Variation

  • Right to search

  • Restriction of email/internet

2. Implied Terms

• Implication by:

  • Statute

  • Custom/past conduct

  • Officious bystander test

  • Business efficacy

• Duties upon employer as implied conditions

  • To pay

  • To provide work

    • Arguably no longer exists as long as payment is given. Depends on facts of case, e.g. actor is dependent on publicity from work despite pay

  • Health and safety

    • Reasonable care for employee. Common law, statutory and tortious duties

  • References

    • Duty to take reasonable care if reference given (no duty to provide one)

  • General duty of care

    • Difficult to run

• Mutual duties upon employer and employee

  • Trust and confidence

    • Physical/verbal abuse

    • Harassment

    • Deception

    • False accusations

• Duties upon employee

  • To provide personal service

  • Reasonable skill, diligence and care

  • Good faith and confidence

  • Duty to obey lawful orders (if reasonable)

3. Post termination restraints

• Confidential information

  • Duty can extend beyond contract but is more narrow. Must be:

    • Trade secret; OR

    • So highly confidential as to amount to a trade secret

• ...

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