About the Contract of employment told lawyer, member of the Center for Legal Linguistics and the Center for Labor Law and Social Security of the Higher school of advocacy Iryna Shaposhnikova during the training event for lawyers held at the Higher School of Advocacy UNBA.
The lecturer analyzed the Contract of employmenttogether with the participants in detail, namely:
- 1. Formation – існування вимог до рецензій роботодавців, а також зобов’язуюче значення пропозиції роботи (job offer).
- 2. Written particulars of terms – правова природа та юридичне значення документу, аналогу якого в Україні не існує.
- 3. Variation of the contract – взаємна чи одностороння зміна трудового договору та коли працівник вважається таким, що погодився на внесені зміни.
- 4. Custom and practice – практичний вплив звичаїв та практики трудових відносин на трудовий контракт і права працівників за ним.
- 5. Implied terms – можливість заповнення прогалин трудового договору, щодо яких сторони не домовилися
Within the framework of the characteristics of the Contract of employment, focused on the following:
- Formation of a contract
DATA PROTECTION ACT 2018:
Schedule 2, paragraph 24
The listed GDPR provisions do not apply to personal data consisting of a reference given(or to be given) inconfidencefor the purposesof—
- (a) the education, training or employment (or prospective education, training or employment) of the datasubject,
- (b) the placement (or prospectiveplacement) of the datasubjectas a volunteer,
- (c) the appointment (or prospective appointment) of the data subject to any office, or
- (d) the provision(or prospectiveprovision)by the data subjectof any service.
Spring v Guardian Assurance (1994):
The former employer gave a reference described as ‘’kiss of death’’ to employee’ s career in insurance industry. In was found that the referee hadacted honestlybut negligentlyindrawingit up.
TSB Bank plc v Harris (2000):
The former employer was accurate in telling the prospective employer that the employee had 17 complaints made against her by customers, of which 4 had been upheld and 8 were still outstanding. The court held that the Bank committed a fundamental breach of an implied contractual duty of trust and confidence as the employee wasnot awareof any of these 15 complaints.
Job offer:
- Unconditional -binding as soon as a person accepts it.
- Conditional – can be withdrawn if a person does not meet the employer’sconditions.
- Written particulars of terms
Sources of employment terms:
- Written terms of particulars
- Employment contract
- Other documents
EMPLOYMENT RIGHTS ACT 1996:
Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars ofemployment. The particulars required by subsections must be included in a single document; and the statement must be given not later than the beginning of the employment. The employer has further obligation to inform employees of any changes in terms and conditions withina month of a change.
A contract of employment creates the rights and duties of the parties. The written statement merely declares what they are after they have been agreed.
System Floors v Daniel (1981):
A written statement supplied to meet the employer’s statutory obligation is not an agreed document: it represents only the employer’sunilateral view of the agreement.
- Variation of the contract
Ways to amend the Contract of employment:
- Mutual variation
- Unilateral variation – usually, a fundamental breach of contract allowing employees to claim unfairdismissal.
Unilateral variation:
Jones v Associated Tunnelling (1981) – The employee was issued with a new written statement which included a mobility clause. He made no protest until 4 years later whenthe employer tried to movehim. The Employment Tribunal held that the agreement could not be implied solely from the failure to protest at the time when the variationhad no immediate practical effect on him.
Solectron Scotland Ltd v Roper (2004) – The Employment Tribunal held that the question to be answered was whether the employee’s conduct in continuing to work was only referable to him havingaccepted the new contract. If the terms of the new agreement affected him immediately and he worked without protest, this could be evidence of acceptance. But if the change had no effect on him, then his conduct in continuing to work could be referable to the old contract and wouldnot indicate acceptance.
- Custom and practice
For a custom to be regarded as part of the contract, it must pass similar tests to customary law:
- – Be reasonable
- – Well-known
- – Existingfor a very long time
Reliance on custom and practice:
Duke v Reliance Systems (1982) – For a unilateral management policy to become a term of employees’ contracts on the basis of custom and practice, there wereat least 2 conditions:
- • It had been drawnto the attention of employees,and
- • It had been acted on without exception over a substantial periodof time.
Quinn v Calder (1996) – The claimants did not receive enhanced redundancy payments as providedin management policydocument. The Employment Tribunal held that the claimants were not entitled to such payments. This was unilateral management policy (not a collectively agreed term) and, although it was known to employees, it had not been brought to their attention inany officialor systematic way.
Park Cakes Ltd v Shumba (2013) – In suchcases issues to consider would be:
- • The number of times and length of period over which such payments had been made,
- • Whether they werealwayscalculated inthe same way,
- • The extend to which they had been publicized to employees, and how werethey described.
- General cases when terms may be implies:
- To give ‘’business efficacy’’
- According to the ‘’officious bystander’’ – Something is so obvious that it goes without saying. If there had been someone standing by listening to the parties make the agreement who had suggested that they express the term, they would have silenced him with ‘’Of Course’’
Reliance on custom and practice:
USDAW v Tesco Stores Ltd (2022) – An express term of the contract stated that retained pay would be ‘’permanent’’, but 12 years later the employer was planning to dismiss employees and offer them new contracts without this benefit. The High Court held that a term should be implied that the benefit was for life and could not be lost. This prevents the employer from terminating contracts to get rid of retained pay.
Horkular v Cantor Fitzgerald International (2004) – Where an employer had discretionary power under the contract, its exercise was subject to an implied term that the discretion would be exercised in good faith. This is in accordance with the implied duty on both parties to maintain mutual trust and confidence in the employment relationship.
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