Lecture 3: Terms of the Employment Contract: Tutorial Questions:

1. What is the difference between an implied term and an express term of

the employment contract? Give examples of each.
implied terms' – for example, things that are so obvious they do not
need to be written and terms that come from employment law
Implied terms include terms that are:

 too obvious to be written – for example, not stealing from your

employer
 'statutory' – this means that they come from employment law
 implied through 'custom and practice'
Terms can also be implied if they are:

 necessary for 'business efficacy' – this means they're needed to

make the working relationship possible
 conduct terms – this is when people's behaviour suggests they've
agreed something, even though they have not written it down or
spoken about it

Terms too obvious to be written

Terms of a contract can be implied when they're so obvious that they

do not have to be written.

An employment tribunal judge would consider a term too obvious to

be written if it passes the 'officious bystander test'. This is when it's so
obvious that the employer and employee intended to include a term,
they did not feel they needed to make it an express term.

Even if they're unwritten, these terms are often crucial for an effective
working relationship between an employer and employee.

To prevent misunderstandings, the employer should make clear:

 the standards of behaviour expected from employees – for
example, anyone who deals with customers should be polite
 what happens if these are not met – for example, the employer will
investigate reports of theft and pass them to the police if
necessary
The employer should also make clear the standards of behaviour their
employees can expect of them. For example, what support they'll put
in place to meet their duty of care. This could include an employee
assistance programme (EAP) or mental health first aiders.

They should put these in writing, for example in an employee

handbook.

Statutory terms

'Statutory terms' are terms that come from employment law. The
employer does not always need to put these types of terms in writing.

For example, employees would be entitled to statutory redundancy

pay if they meet the criteria. Their employer does not need to put the
statutory pay rate in writing.

The exception is any information that must be in the 'written statement

of employment particulars'. For example, if the employer pays an
employee the minimum wage, they must include that amount in the
written statement. Find out more about what the written statement
must include.
An employer cannot override statutory terms with an express term.

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'express terms' – specific terms that are usually put in writing, for example the
employee's pay or working hours
Express terms can be agreed verbally, through conversations.
Terms agreed verbally are as legally binding as terms that are
written down.

However, it's important to remember:

 employers are required to put in writing any terms which form
part of the written statement of employment particulars
 it's helpful to put all terms in writing – this will mean
everyone understands their rights and responsibilities
For example, it might seem obvious that a school caretaker
needs to live near the school. However, the employer should put
in writing in the contract where the caretaker must live. This
would avoid misunderstandings.
Information in the contract must follow the law. For example, an
employer cannot include a term stating that an employee is paid
£4 per hour. This is because this amount is below the National
Minimum Wage.

If an employer does include a term that's against the law, they

cannot enforce it.

2. Determine whether the employer has breached the implied terms of the
employment contract in the following:
 Mr. Peter was demoted without warning; lost his office and was told
to expect a cut in wages, He continued to work for the garage, but in
an effort to force resignation, the employer subjected him to
continuous verbal abuse, He was criticised on a daily basis and was
constantly threatened with dismissal.
 Mr. Ahmed worked as a bank manager and over several years had
given loans to persons’ who were obviously bad credit risks. Advise
the bank.

3. "The doctrine of implied terms has been responsible for expanding the
contract of employment in favourable ways. “Discuss.

Lecture 4: Law of Obligations: - Employers Liability

 1. Lambic Plc. owns some premises and decided to have the central heating
system replaced with a modern system. It engages Lead Ltd. as
employees to carry out this job which sends two plumbers to the
premises. While the plumbers are working, one of them carelessly leaves
a blow-lamp running and the partition to the office catches fire. Jenny
who is working in the office is burnt and while she is running out of the
room slips on some oil which, spilled from one of the worker’s toolbox
and severely injures her back. She is unable to work for seven months.
Additionally, Carl who is an employee of Lambic Plc., carelessly leaves a
screwdriver on the floor and Katherine, another employee trips on it and
sprains her leg. In the ensuing commotion, an unknown thief enters the
premises and steals a sheepskin coat which belongs to Richard, another
employee of Lambic Plc. Richard kept his coat in the cupboard which,
unfortunately had no locks. ADVISE JENNY, KATHERINE AND RICHARD.

2. Rosie and Jenny work for Stress-Free World Plc. The company
manufactures and exports aid to relaxation such as candles, oil burners,
meditation tapes and wind chimes. Their colleague Henry, is known as a
practical joker.
i. Last Friday Rosie walked up to the machine and started sneezing
violently. She fell against the machine and injured her arm. Henry
was seen laughing, and he admitted to his friend Neil, later that
day that he had poured sneezing powder all over Rosie’s
workstation.
ii. Henry then leaves to find another friend, and on his way he runs
and slips on some oil. The company tried to clean up the oil, but
was unable to find enough saw dust. Henry injured his ankle, as he
was not wearing his regulation office boots.
iii. Brian, seeing Henry fall, loses concentration at his machine. There
is no guard in place and he severs his hand
Advise Stress-Free World as to any liability it may owe.

3. Brett is an uninsured plumber who gets his work from Brogan

Construction. Brett is always instructed on what is required for the job and
how it should be carried out by the Brogan foreman, and he is supplied with all
his tools, including a van to get to each job; he can bring his own labourers to a
job but he must pay them out of his wages. Brogan pays Brett a daily rate for
any jobs but he receives no other benefits.
Recently, owing to a shortage of plumbing work on offer, Brogan
arranged for Brett to do some work with Hacker Heating Ltd in return for a fee.
The job involved fitting a new boiler in a residential property, owned by Ted.
However, owing to a part turning up late, Brett rushed the installation as it was
already past his normal finish time with Brogan Construction and he had a
hangover from the night before and wanted to get to bed. The boiler
subsequently exploded, killing Ted. It has been accepted that the boiler was
installed negligently and that this caused the explosion; however, Brett has
argued that as an employee he should not be held personally liable, while
Hacker Heating Ltd argue he was certainly not their employee.
Advise Brogan Construction on whether they could be held vicariously liable
for Ted’s death.

4. Factor X (FX), an events management company, was contracted to

provide corporate hospitality by Womberfield Stadium for clients attending a
sporting event. In order to exclude the general public from the exclusive
corporate hospitality area, FX engaged its usual contactors, Crew Service (CS),
to provide security for the day in question. The security staff’s instructions
from FX were detailed and included a specific instruction not to admit people
without a ticket, along with an instruction that should there be any problem
with a non-ticket holder trying to enter, the member of staff should radio a
member of FX staff and wait for them to attend to resolve the situation.
The centerpiece to the hospitality buffet was an elaborate chocolate
fountain. Paula, an FX employee, assembled the fountain incorrectly and did
not test it as she had been instructed to do. As a result of the incorrect
assembly, the fountain later toppled over, scalding several guests and knocking
one unconscious. During the commotion, Scally tried to sneak into the event
but was caught by Louie, one of the security staff. Louie violently twisted
Scally’s arm and threw him to the ground, breaking Scally’s wrist and cutting
his head. Advise FX