Employment Law

Frequently Asked Questions

• What is an express term?

  An oral or written provision stipulating the key elements of a contract.

• What terms must contracts of employment expressly include?

  Employees must be provided with a statement of written particulars of employment, setting out the key pieces of information governing the employee’s employment. A contract of employment or letter of engagement will constitute a statement of written particulars.

  The particulars must be provided by the date on which the employment starts at the latest, although information relating to pension provision, collective agreements, training and disciplinary and grievance procedures may be provided up to two months after employment starts.

  If the written particulars change during the employee’s employment, the employer must provide them with a written statement of changes within one month.

• What's included in a statement of written particulars?

  The following particulars must be provided in the same document:

  • name of employer and worker;
  • date employment commenced;
  • date when continuous employment began (for employees only);
  • scale, rate and method of calculating pay;
  • intervals at which remuneration is paid;
  • terms and conditions relating to hours of work (including the days of the week the worker is required to work, whether this may vary and if so, how they may vary);
  • entitlement to holidays, including public holidays and holiday pay;
  • any other benefits provided by the employer;
  • notice periods for termination;
  • job title or brief description of duties;
  • terms as to length of temporary or fixed term work;
  • probationary period, including any conditions and its duration;
  • expected place of work;
  • any collective agreements (entered into by the worker’s union and the employer) which directly affect the terms and conditions of the employment;
  • terms related to work outside the UK for a period of more than one month; and
  • any mandatory training and/or any training which must be paid for by the worker.

   The following particulars must also be provided:

  • a person to whom the worker can appeal if they are dissatisfied with any disciplinary decision relating to them; and
  • a person to whom the worker can apply for the purpose of raising a grievance.

  The following particulars must be provided, but the worker can be referred to the provisions of another document.  This will typically be the staff handbook or intranet pages:

  • sick leave and pay;
  • any other paid leave;
  • pension provision;
  • any training entitlement provided by the employer; and
  • further information about disciplinary and grievance procedures.

  If there are no particulars to be provided under any head, this fact must be stated in the written particulars.

• Are any terms implied into contracts?

  Yes, terms may be implied as a result of statute, custom and practice, the officious bystander test, business efficacy and the duties of the employer/ee.

  Statute

  Statute implies terms relating to minimum notice, equal pay and working time.

  Custom and practice

  A term may be implied by virtue of the custom and practice of the workplace and/or employer, for example where an employer has given staff a bonus every Christmas for the past decade.

  The officious bystander test

  A term will be implied where it is so obvious that both parties would have immediately agreed to it at the outset, for example that teachers don’t need to report to school for teaching during the holidays.

  The business efficacy test

  A term may be implied to make a contract workable, for example a term requiring a chauffeur to hold a valid driving licence.

  Duties of the employer

  Duty to pay: if a contract is silent, the employee has an implied right to reasonable remuneration and can make a claim if they are paid under the minimum wage.

  Duty to provide work: there may be a duty where there is work to be done, the employee is willing to do it and/or there is a need for frequent practice of skills.

  Duty to take reasonable care for the employee’s health and safety: an employer must ensure the employee’s physical and mental health and safety and provide a safe system of work.

  References: an employer is not obliged to give a reference but if they are to provide one, it must be true, accurate and fair.

  Duties of the employee

  Duty to provide personal service: an employee has a personal obligation to perform work.

  Duty to work with reasonable skills, diligence and care: an employee must be reasonably competent to perform their duties with care.

  Duty of good faith and confidence: the employee must be honest and must not act against the interests of the business.

  The employer and employee also have a shared duty of trust and confidence.

• Are there any terms which prevail following termination of employment?

  Confidentiality clauses

  There is an implied confidentiality clause which remains post-termination.

  During employment, the implied duty of good faith mentioned above encompasses a wide duty of confidentiality which prohibits the disclosure of information classed as a trade secret or information which the employer regards as confidential.

  Once employment has ended, the employee is under a narrower duty not to disclose information that is a trade secret or is so confidential that it requires the same protection as a trade secret. This usually includes technical information regarding manufacturing processes and high level strategic business plans. 

  It is still usually advisable for an employer to include an express confidentiality clause in its employees’ contracts.

  Restrictive covenants

  Employers may put further restrictions on their employees by the use of express terms, known as restrictive covenants. The courts look unfavourably on these terms, and in order to be enforceable they must protect a legitimate interest of the business and go no further than is reasonably necessary to protect that interest. Legitimate interests commonly include an employer’s trade connections and trade secrets.