Employment Contract Law

There is often a common preconception that if there is no written contract of employment between and employer and employee then there is no contract, however employment contract law has confirmed otherwise. There is always a contract of employment between an employer and an employee even if it is not in writing one will still exist. This is down to the fact that because you made an agreement with your employer to work for them and their agreement to pay you for any work that you do is enough to establish to contract. Even if there is no written contract initially your employer should give you a written statement within 2 months of starting your employment. This written statement should include certain terms and conditions.

In employment contract law if the employer fails to provide this written statement within the first two months there you could potentially claim for the failure to provide. We would however advise you to try to deal with the matter internally first because in reality the claim is only worth between 2 to 4 weeks wages and with the new tribunal fees this could potentially swallow up a large proportion of what you would recover.

Rights Under A Contract

A contract supplies certain key rights and obligations to employees and also to employers. The key one being that the employee has the right to be paid whilst in return the employer has the right to expect the employee to actually perform the work he is being instructed to do.

The rights that you have under a contract are on top of the rights that you have that are protected by statute (often known as protected by law). Information on employee rights that are protected in law can be found here.

The employee and employer can decide on whatever terms they wish in the employment contract, however within employment contract law the terms in the contract can not give the employee less rights than they would get from statute.

Within a contract of employment there are two main types of terms, these are express terms and implied terms.

Express Terms

These are terms that will have been explicitly agreed between the employee and the employer. These can be quite wide ranging and are known to include:

• wages (including bonus/overtime if it’s applicable)
• hours of work (again including overtime if applicable)
• holiday pay and how much time you are entitled to.
• sick pay
• redundancy pay
• the amount of notice that has to be given

Although there are these express terms this does not necessarily mean they will all be found in the same place and indeed if you don’t have a written contract then it’s incredibly unlikely that this is going to be the case. However they can generally be found in a variety of locations.

If there is no written contract it is advised that anything which has been said to the employee should be recorded as this could then form part of the contract.

Implied Terms

These are terms which have not been specifically agreed between the employee and employer, however they can be terms that are implied through various actions like custom and practice, general terms which are implied into most contract or if there are terms agreed between the employer and another organisation such as a trade union. There are a few general implied terms which are applicable to nearly every employment contract. These general implied terms are as follows:

• Duty of Trust: There is an implied duty of trust between employer and employee

• Duty of Care: There is duty of care between the employer and employee and also between the employee and other employees. This means that the employer should provide a safe working environment for all it’s employees. On the flip side of that, all employees should use their common sense and work in as safe a way as possible. 
• Duty to obey reasonable instructions: This one is aimed primarily at the employees who have to obey any reasonable instructions of work given to them by their employer. It should be noted that if any employer asks an employee to do something illegal this will not be classed as a reasonable instruction.
• Duty to pay wages and provide work: The employer has a duty to provide work and pay wages. Even if there is no work available for the employee, as long as they are willing to work the employer has a duty to pay their wages. (unless there is a point in your contract which says otherwise)

What happens if your employer breaches a term?

In employment contract law if there is a breach of a contractual term be it implied or express there could potentially be a future claim to be made. The first step that will need to be done is to try and deal with the matter informally, raising it with your line manager is always a good first step as that way they know you are having a problem with what is going on. If the informal approach doesn’t work then it we would advise the employee to submit a grievance about the situation. The correct procedure will often be found within the employee’s handbook which is often on the intranet or can be gained from HR.

If the breach is to do with money, be it failing to pay notice or a contractual bonus etc then in employment contract law a claim can be made at the employment tribunal for the money that is owed if the informal and grievance approach does not work.

If the breach is to do with another term of the contract then there is a harder decision to make. The main way you can make a claim would be if you decided to resign following the failure of your employer to deal with the breach of contract and then make a claim for constructive dismissal. Before you go down that route we would strongly advise any employee to complete a grievance procedure before resigning as without this procedure completed it is unlikely that you will get far in any constructive dismissal claim.

What Next?

If you feel your employer has breached your contract and think you might have a potential claim then please don’t hesitate to contact us on [phonenumber] where our employment contract law experts will be able to advise you on whether your case is one that could potentially be taken forward.