Terms of the Employment Contract
The contract of employment comes into existence either when the employee begins employment or upon it being signed. Its terms can be written, oral or implied, or, in fact, all three. The contract of employment is an agreement between an employer and employee which sets out their rights, responsibilities and duties.
There are many sources for the terms of employment:- written terms; orally agreed; written statements; collective agreements; employment handbook and related documents, such as disciplinary procedures; job descriptions; job advertisements; custom and practice; implied terms from statute and case law and others. So, the first point of reference for an employment solicitor is to ascertain if there is any breaches are the contractual terms from whatever source.
Contract of employment
The contract of employment is in essence the same as any other contract.
The written contract covers many different terms aside from the usual of pay, hours and notice and should be analysed with the assistance of an employment solicitor.
Written Statement of employment particulars
The written statement deserves a special mention.
If the employer has not provided an employment contract, and the employee has been taken on for longer than one month then, by law, the employee is entitled to be given written particulars of employment within two months. This written statement will cover the main aspects of the employment relationship. Items included in the written statement range from the date when the employment began, pay, holidays and working hours amongst others. It is not the contract of employment but very strong evidence of the terms. Consequently, if there is other evidence of agreed terms they will usually prevail over the written statement.
Certain terms are implied by law whether or not they have been written into the contract - these include the following obligations:-
On the employee:-
- A duty of good faith
- A duty to exercise reasonable skill and care
- A duty to obey lawful orders
- A duty of confidentiality
On the employer:-
A duty to pay agreed wages
- A duty to provide a safe workplace
Both the employer and the employee have a duty of mutual trust and confidence.
To avoid uncertainty and misunderstanding, it is advisable to set as many terms as possible in writing.
Orally agreed terms have the same status as written terms, the only problem is proof. It is always useful to confirm any oral statements with an e-mail or other evidence. Employment contracts are often drafted to protect the employer from orally agreed terms by the use of an "entire agreement" clause excluding all other representations from forming part of the contract.