The Composition Of The Workforce In Fact And Law Notes

Labour Law Reading Session 1 The composition of the workforce in fact and law The General Overview Collins, Ewing and McColgan, Labour Law, Chapter 2 The Contract of Employment * Freedom of contract means that types of employment and conditions of employment can be very varied. * Courts developed rules to standardise employment, because contracts used to be insufficiently detailed. * The court implies duties into the contract (though some of these duties have been developed via other areas of the law e.g. tort): o The employer has duties to take reasonable care of the employees' health and safety, not to act in a manner likely to destroy mutual trust and confidence, and to give reasonable notice upon termination. o Employee has duties to obey the lawful instructions of the employer, take reasonable care in performance of the contract, act loyally to employer's interests, serve employer faithfully within requirements of the contract, and give reasonable notice of termination. * Some terms are implied into contracts conclusively by legislation i.e. no contracting out e.g. minimum wage. * A contract of employment has a wage for work bargain at its core. It is distinguished from independent contractors for the purpose of determining whether a person is self-employed (National Insurance Act 1911, Finance Act 1922 etc). The Wage-Work Bargain * Contract law says that in employment contracts the wage may be withheld where the work is not completed. * The courts have shown a willingness to imply a term that the employee will work to a reasonable quality or in 'good faith' allowing the employer to make reductions/refuse to pay where work doesn't reach this standard. However under Employment Rights Act 1996 s.13 (1) the employer cant make deductions from pay unless (a) authorised to do so by statute/contract provision, or (b) the worker has consented in writing to the deduction. Also (2)(b) the worker has to be adequately notified of the term's content in writing. NB though workers must bring the claim to reclaim withheld wages. NB v broad definition of wages under s. 27 ERA 1996 (includes anything payable under contract, court award relating to employment, statutory pay etc). NB s.13 ERA doesn't apply where the worker is on strike (s.14(5)). * Subject to express wording of the contract, the risk of there being no work to do is placed upon the employer- i.e. the employer has to pay the employee even if no work is available, unless express terms overturn this implied term. If there is no work the employee can sometimes terminate the contract and claim statutory reduncdancy payment. An employee in general has no right to expect to be busy * * * * * rather than idle, except where he has been suspended when the employer has no power under the contract to suspend; where extended 'garden leave' (being prevented from working in notice period and prevented from working for a competitor for a while) offends the restraint of trade doctrine; or where the failure to be given work harms the employee's reputation and employability. In these exceptional circumstances, failure to provide the employee with work may be considered to be a breach of contract. The courts generally fill out the employment contracts according to what the parties' reasonable expectations were, so as to promote business efficiency. Employee handbooks/rulebooks: Employers will try to argue that they are not part of the contracts, but are merely orders expressed pursuant to the employee's duty to obey lawful orders. This allows them to assert orders without being bound by the procedures mentioned in the handbooks (e.g. disciplinary hearings etc). Sometimes the courts have held them to be incorporated into contracts by contractual wording or implied incorporation by custom. However they are usually just deemed the employer's orders. Collective agreements are those reached between a trade union and an employer(s), often governing the core parts of the wage-work agreement for the workers concerned (such as wage rates), the contents of the rulebook, and the conduct for future collective negotiations. Under s.179 of Trade Union and Labour Relations Act 1992, collective agreements are presumed by the parties involved not to be legally binding unless in writing and containing a clause stating that the parties intend that the agreement shall be legally binding. Parties more likely to use industrial action/lockouts to enforce agreement anyway. However, if written, the agreement can still be incorporated by reference into the employment contract, if the court considers the terms 'apt' for incorporation, i.e. cant be too vague. Most other jurisdictions allow collective agreements to be enforceable like any other contract. During 20th century there was the emergence of a term that the employer must not destroy the 'mutual trust and confidence', especially by abusing his discretionary powers. Usually claimed by employees to allege breach of contract or constructive unfair dismissal. The courts developed the term to prevent abuse of managerial power by employers. Also, given development of statutory duty not to dismiss someone unfairly, it make sense that employees should have to be treated fairly during employment too. Also modern management techniques have influenced common law thinking (see study p.125). There is also a duty of loyalty. The provision of info is important e.g. in misrepresentation to get a job. Misrepresentation can lead to rescission and/or damages, and has been based on an implied term in contracts (e.g. to provide reasonable references) or on tort (e.g. tort of deceit in Spring v Guardian assurance). Employees have rights to certain information under ERA 1996, which employers are under a duty to provide: A statement of principal terms and conditions of employment within 2 months of starting work (s.1); itemised pay statements explaining how wages have been calculated (s.8); written statement of reason for dismissal (s.92); and written notification of terms of the contract that permits an employer to make deductions from wages (s.13). These, especially s.1, help resolve the problem of lots of terms 

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