CHAPTER 2 The sources of contractual terms

Introduction This section concerns the contract of employment and how it comes into existence. It is important to understand the influences that contribute to establishing the contents of the contract because they have important implications.

Express terms agreed between the employer and the employee, or the employee ’ s representatives, normally take precedence over all other terms. The sources of contractual terms

There is a statutory requirement for the employer to issue written particulars of employment to new employees within two months of their start date. The sources of contractual terms

These particulars must be considered in detail because they establish the nature of the contract of employment. The sources of contractual terms

Apprentices and merchant seamen can only be employed under written deeds and articles respectively. With these exceptions, contracts of employment may be oral or in writing. A contract of employment is subject to the general principles of law. The sources of contractual terms

It is an important principle that the parties are free to negotiate the terms and conditions so long as they remain within statute and the common law. The sources of contractual terms

Terms included in the contract – express terms – normally take precedence over all other terms apart from those implied by statute. The sources of contractual terms

Not later than two months after the start of employment the employer must supply written particulars of employment, as provided for in sections 1–3 ERA The sources of contractual terms

STATEMENT OF PARTICULARS The following information must be given to employees individually: The sources of contractual terms

1)The identity of the parties 2)The date on which the employee ’ s period of continuous employment began The sources of contractual terms

3)The scale or rate of remuneration, or the method of calculating remuneration, and the intervals at which remuneration is paid 4)Any terms and conditions relating to hours of work and normal working hours The sources of contractual terms

5)Any terms and conditions relating to holidays and holiday pay 6)Any terms and conditions relating to incapacity for work due to sickness or injury The sources of contractual terms

7)Any terms and conditions relating to pensions and pension schemes The sources of contractual terms 8)A note stating whether a contracting-out certificate is in force 9)The length of notice which the employee is entitled to receive and is obliged to give

10)The title of the job or a brief description of the employee ’ s work The sources of contractual terms 11)Where the employment is temporary, the period for which it is expected to continue, or, if it is for a fixed term, the date when it is to end 12)The place of work, or, if the employee is required or permitted to work at various places, an indication of the employer ’ s address

13)Any collective agreements which directly affect the terms and conditions of employment, including, where the employer is not a party, the person by whom they were made The sources of contractual terms 14)The terms that apply where the employee is required to work outside the UK for more than a month.

15)Any disciplinary rules applicable to the employee and any procedure applicable to the taking of disciplinary decisions (including dismissal) relating to the employee The sources of contractual terms

16)The name or description of the person to whom employees can apply if they are dissatisfied with any disciplinary decision or seek to redress a grievance The sources of contractual terms 17)Any further steps consequent upon an application expressing dissatisfaction over a disciplinary decision (including dismissal) or grievance

The statement of particulars does not constitute a contract of employment. It is merely the employer’s version of what has been agreed. The sources of contractual terms

Terms of a contract may be derived from collective agreements as well as being individually negotiated. The sources of contractual terms Substantive terms from a collective agreement may be incorporated into an employee’s contract of employment expressly or impliedly or as a result of custom and practice.

It is important to know that about two-thirds of workplaces in the UK do not have any employees covered by collective agreements. The sources of contractual terms

Workforce agreements can provide for a variation in the Working Time Regulations and other specified rights where there is no collective agreement. The sources of contractual terms

Works rules are normally determined by the employer and can be expressly or impliedly incorporated into a contract of employment. The sources of contractual terms

Custom and practice – if it is definite, reasonable and generally applied – can be used to fill gaps in the employment relationship. The sources of contractual terms

Terms, such as the equality clause in section 1 EPA 1970, can be implied in the contract of employment by statute. The sources of contractual terms Terms can also be implied by the common law if they are consistent with the express terms.