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LPC Law Notes Employment Law Notes

Contract Of Employment I Tutorial Notes

Updated Contract Of Employment I Tutorial Notes

Employment Law Notes

Employment Law

Approximately 388 pages

A collection of the best LPC Employment notes the director of Oxbridge Notes (a former Oxford law graduate) could find in 2014 after combing through seventeen LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Employment Law notes available in the UK this year. This collection of notes is full...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Employment Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Noter-up
Intro

  • Contractual relationship, express and implied terms (e.g. indemnity clause and anti-discriminatory clause implied)

  • Governed by the law of contract as well as common law and statute therefore

  • Outcomes:
Formation
Activity 1 – creating the contract

  • The recruitment process:

  • When is the contract formed?

  • There is no correct answer as different employers have different recruitment processes

  • Formed before the employee starts… As the requirements of a valid contract are satisfied:

  • There is consideration as the employer has expressed a wish to pay the employee for their service, and since an employment contract is a commercial contract, there is a presumed intention to create legal relations
Terms of the contract

  • Three types of terms in the contract: express, implied terms by common law (implied as a result of case law built up over a number of years) and terms implied by statute

  • Can be difficult to ascertain the express terms since not all employers write everything down

  • However s.1 Employment Rights Act 1996 requires employers to provide a written statement of terms and conditions
Activity 2 – The contract

  • Employee has just started new job… list the key terms:

  • That list is straight from s.1

  • If some of these do not apply to the employee in question, the statement must state which terms do not apply; the statement may also refer to other documents (e.g. pension scheme)

  • Must be given to the employee within 2 months of commencement of the employment; if this doesn’t happen the employee can apply to the tribunal who will determine what those terms should be

  • The written statement is NOT the contract of employment explored above; it is evidence of the key terms of employment and can be useful in a dispute

  • The statement is not needed if the employer provides the employee with a written contract covering all of the s.1 requirements
Activity 3 – Terms implied by common law

  • Common law terms and statutory terms imposing duties on both employers and employees

Employer’s Duties:

  • To pay employees

  • To provide work

  • To indemnify

  • To take reasonable care of the employee’s safety

  • To take reasonable care in giving references

Employee’s duties:

  • To follow employer’s instructions

  • To carry out duties personally

  • To indemnify

  • To carry out duties in a safe manner

The duty of trust and confidence

  • Applies to both employers and employees; means the parties must not do anything to undermine the mutual trust and confidence that should exist between the employer and employee

  • Developed in case law (created; finalised)

  • The boundaries are unclear but some examples:

  • Must consider two questions when establishing whether there has been a breach:

  • E.g. employers gives sales team bonus; employer deliberately omits to pay bonus to one member of team; likely to breach trust and confidence; however if his sales figures were lower than everyone else’s, the withholding of the bonus may be reasonable and there is no breach of the duty
Activity 4 – the operation of the duty

  • Has the duty been breached in the following scenarios…

  • Yes – Likely to damage relationship – effectively a demotion making him feel surplus to requirements; employer should have made provisions for him

  • Barry will make a personal profit from the work and has put himself in direct competition with his employer; also used his knowledge of the firm’s pricing structure to exploit them; definitely a breach

  • Entitled to speak to the staff about time keeping but should not have done so in public and should have given Simon chance to explain; instead she has undermined him; breach
Statutory implied terms

  • Relevant statutes:

  • An express term will usually override on implied by statute; however not always in employment law – terms implied by statute and the implied duty of trust WILL OVERRIDE any express term that offers the employee less protection; if it offers the employee a greater level of protection, it will be fine

  • E.g. can’t agree a notice period that is less than the statutory minimum, but can agree a longer period of notice

  • The other terms implied by common law (i.e. those other than the duty of trust and confidence) CAN be overridden by agreement

Competition, trade secrets and confidential information

USE THIS FOR EXAM, GOOD SUMMARY

  • Relationship of trust – employee may have access to confidential information; employees may want to take advantage of this and set up a competing business or work for a rival

  • By using a combination of implied and express terms may be able to restrict this and protect the business

  • Implied terms – duty of trust and confidence

  • One aspect of this is the duty of fidelity (or duty of good faith) – this restricts the employee’s actions during and after employment; they must not let their own interests conflict with that of their employer or compete with them; they must also respect their employer’s trade...

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