Common Law Definements In The Contract Of Employment In Employment Law

There are several terms that can be implied within a contract of employment through common law. Implied terms to a contract of employment have developed over time through the decisions made by the courts in a number of cases, these being known as common law implied terms.

Common law implied terms that have derived from case law relate to both the employer and the employee and each party has a responsibility to carry this out or risk a breach of contract.

There are five situations in which these terms mentioned could be implied into a contract:

1. The term automatically forms part of the contract as it is key to the employment relationship;

2. The term is necessary to give business efficacy to the contract;

3. The term is so obvious that the parties must have intended it;

4. It is normal custom and practice to include such a term; and

5. The way in which the contract has been performed shows that it must have been the intention of the parties to include such a term. (Smith.A, Manual 1, Employment Law & Practice, page 71)

The main implied term in common law is the duty of trust and confidence

There are circumstances in which there is a duty for the employer to pay the wages and provide work to the employee although if these circumstances are not taking place then there is no right to provide work as determined in the case of Turner v Sawdon [1901] 2 KB 653. For the employee, the duty to serve the employer and obey reasonable instructions is personal and they cannot ask someone else to perform their duties for them. This was identified in the case of Laws v London Chronicle Ltd [1959] 1 WLR 698. Based on this, the employee could not ask someone else to carry out their role because they are unavailable to attend work that