Everyone has a contract of employment, many of us will have a printed version whilst some may never have actually been given a paper version. Regardless of if you have a verbal or written contract of employment, they are still a binding agreement between yourself and your employer.
Your contract of employment can be tricky to understand if you’re not familiar with employment law or the various terminology, so we’ve put together a short mini-series to help you understand your contract of employment.
This week, we’ll be concentrating on the role of the contract of employment and the two different types of contractual terms.
The role of the contract of employment
There is always a contract between an employee and employer. You may not have anything in writing, but a contract will still exist. This is because your agreement to work for your employer and your employer’s agreement to pay you for your work forms a contract. Your employer does have to give you a written statement within two months of you starting work. The statement must contain certain terms and conditions.
A contract gives both you and your employer certain rights and obligations. The most common example is that you have a right to be paid for the work you do. Your employer has a right to give reasonable instructions to you and for you to work at your job. These rights and obligations are called contractual terms.
The rights that you have under your contract of employment are in addition to the rights you have under law, such as, for example, the right to a national minimum wage and the right to paid holidays.
Generally, you and your employer can agree to whatever terms you wish to be in the contract, but you cannot agree to a contractual term which gives you less rights than you have under law (we’ll be concentrating more on this later in the series).
A contract of employment will usually be made up of two types of contractual terms. These are:
1. express terms
2. implied terms.
Express contractual terms
Express terms in an employment contract are those that are explicitly agreed between you and your employer and can include:
• amount of wages, including any overtime or bonus pay
• hours of work, including overtime hours (there is a legal limit for most employees on the maximum number of hours they can work per week)
• holiday pay, including how much time off you are entitled to (nearly all full-time workers are entitled by law to 28 days’ paid holiday – they may be entitled to more under their contract. Part-time workers are entitled to a pro rata amount)
• sick pay
• redundancy pay
• how much warning (notice) the employer must give you if you are dismissed.
• The express contractual terms may not be in one written document, but may be in a number of different documents. They may not be written at all. The express terms may be found in:
• the job advertisement
• a written statement of main terms and conditions (see under heading Employee’s right to written details about the employment contract)
• any letters sent by your employer to you before you started work
• anything you were asked to sign when or since you started work
• instructions or announcements made by your employer on a notice board at work
• an office manual or staff handbook
You may not have possession of all the relevant papers. You may be able to get copies from your Personnel Department, foreman, or trade union representative. You should always keep any papers given to you by your employer.
General implied terms
The following duties and obligations will usually be implied into any contract of employment:-
• the employee and employer have a duty of trust to each other. This means, for example, that if you give your employer’s industrial secrets to a competitor, you will have broken an implied contractual term of trust
• the employer and employee have a duty of care towards each other and other employees. This means, for example, that the employer should provide a safe working environment for the employee and that the employee should use machinery safely
• the employee has a duty to obey any reasonable instructions given by the employer. There is no legal definition of reasonable, but it would not be reasonable to tell an employee to do something unlawful, for example, a lorry driver should not be told to drive an uninsured or untaxed vehicle
• your employer has a duty to pay your wages and provide work. As long as you are willing to work, your employer must pay your wages even if no work is available, unless your contract says otherwise.
Terms implied by custom and practice
When dealing with a particular employment problem, there may be no express contractual term covering the matter. In such a case, it is helpful to look at what has happened to other employees in the workplace. This is because if other employees have been given this right, you can argue that you also have the right under ‘custom and practice’.
Trying to show that you have a right through ‘custom and practice’ can be complicated and you should consult an experienced adviser, for example, at a Citizens Advice Bureau.