Contract Of Employment : Common Law Essay

Contract Of Employment : Common Law Essay

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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 between and employer and an employee. Both parties to the contract have a mutual duty to ensure that this is fulfilled and this implied term has developed over the years through case law. The basic test for this implied term was initially set out in the case of Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 by the Employment Appeal Tribunal (EAT) and was confirmed in the case of Malik v BCCI [1979] ICR 606 by the House of Lords. It was determined that this was an objective test and that when there are potential breaches of trust and confidence there are two questions that should be considered:
1. Did the employer conduct themsel...

... middle of paper ...

...actice, page 75)
There are also implied terms for after the employment has ceased for both the employer and the employee. The employer would be expected to take reasonable care in relation to giving references. There is no duty to provide a reference for an employee but if they do they should ensure that it is factual and accurate. This was highlighted in the case of Spring v Guardian Assurance Plc [1994] IRLR 460. For the employee, there are no real implied terms other than not to pass on confidential information or reveal trade secrets, although these are more likely to fall within an express term of the contract. (Smith.A, Manual 1, Employment Law & Practice, page 75)
In conclusion, these implied terms bring about additional clauses to an employer and employees relationship in addition to the express terms that are already laid down in the employment contract.

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