Contracts of Employment - Terms & Conditions
A contract of employment
requires the same fundamental points as other types of contacts
within business. The contract is an agreement that is entered
into either verbally, in writing, or by conduct. Whilst many people
may state that ‘a verbal contract is not worth the paper
it is written on’, this is not actually a true statement.
If no contact exists prior to employment one will come into existence
as soon as an employee starts work. This is because the employee
has demonstrated acceptance of the job on the terms and conditions
offered by actually starting work. However, a written statement
is actual proof that a contract exists and provides greater clarity
for the parties involved.
The basic contract requires-
An offer
Acceptance
Intention to be legally bound
Consideration
It must also be free from vitiating factors, i.e. mistakes, misrepresentation
and illegality
Terms and Conditions
A contract of employment consists of terms and conditions. Terms
are bilateral. They are an agreement between the employer and
the employee. Conditions are unilateral. They are instructions
laid down by the employer. The following example helps to demonstrate
the difference.
A term – You are entitled to 4 weeks holiday per annum
A condition – You must take 4 weeks holiday per annum
Terms can be expressed, implied or statutory. They should be clear,
not ambiguous and should be reasonable within the industry.
Expressed Terms
These can be written or verbal and are part of the employment
contract. The following are examples of expressed terms-
You are entitled to 4 weeks holiday per annum
Implied terms
These were not expressed in the contract. However in court it
may be deemed that a term was implied. This means that the term
was so obvious that it should been there or that it has to be
implied to make the contract effective. The following are examples
of implied terms from the employee and the employer-
Employer implied terms
To pay the employees wages – this is not a duty to provide
work. It does not apply to commission paid work
To indemnify the employee – to protect them legally
To take reasonable care
To show good faith or mutual trust
To provide accurate references
Employee implied terms
To obey lawful orders – respond to reasonable requests
To take reasonable care – look after employer’s property,
be competent at job and work with due diligence
To show good faith - loyalty, fidelity
Statutory terms
These terms exist through legislation. Therefore an employer cannot
provide a contract with terms that contradict statutory terms.
If statutory terms are not stated within the contract then they
will exist as if they were in the contract. The following are
examples of statutory rights when prevailing legislation applies
To statutory minimum notice periods
Not to have unauthorised deductions from wages
Not to be discriminated against on the grounds of sex, race, marital
status or disability
The different types of terms and conditions detailed above are
examples only and should not be deemed exhaustive.
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