1. Terms of Employment Sources of terms and conditions Express terms
terms agreed by the parties
statement of employment particulars such as salary rates, working hours, holidays, sick pay and pension rights
formal rules and procedures such as those governing discipline and dismissal
Implied terms
terms implied by custom or practice
terms implied by common law
Employees have the right to receive written statement of some of the most important terms and conditions of employment within 8 weeks of commencement of employment (Employment Rights Act 1996 s1) – this must include:
In the principle document: Identification of the parties; the date on which employment began; rate and intervals of pay; hours of work; holiday entitlement; job title, or brief description of work; place(s) of work.
Not necessarily in the principle document: sick leave and sick pay; pension and pension schemes; whether employment is permanent; any collective agreements directly affecting employment; details concerning work outside the UK where applicable.
Note: this written statement is NOT a ‘contract of employment’ but merely a statement of those terms of the contract required by law, and will not contain all of the terms of the contract. (Only in exceptional cases must the contract itself be in writing.)

2. Implied Terms Duties of Employer to pay the employee to provide work
to provide for the safety of the employee
to take reasonable care and not to injure employee’s health
safe plant and equipment
safe system and method of work
competent staff
to maintain good faith/mutual trust and respect
to take care in providing references
A duty exists for employers to undertake adequate risk assessment of stress.
In August 2003, the Health and safety Executive (HSE) issued its first enforcement notice against an NHS Trust (Dorset General Hospital NHS Trust) for failing to protect doctors and nurses at work from stress-related illness. The HSE investigated after staff complained of bullying and unbearable hours. Inspectors found that management did not have procedures to assess the risk of stress to fulfil the duty of care to employees. The HSE ordered the Trust to undertake risk assessment of the burden being placed on employees. (The improvement notice was removed in March 2004)
The HSE estimates that workplace stress costs Britain £3.7 billion per year – the second highest cause of long-term absence from work, accounting for more than 13 million lost working days a year. The study found that one in five workers showed ‘extremely high’ stress – the highest rates of stress, depression or anxiety were found in nurses and teachers. (HSE 2001/2 survey of Self-reported Work-related Illness (SWI01/02) )
Beyond the consideration of the work force as a whole, the employer may also need to take account of individuals who are particularly susceptible to stress-related illness provided that the susceptibility can be reasonably foreseen. In practice, the extent to which this is possible will vary. In many cases individual susceptibility can easily be foreseen. An obvious example is that of an individual who has already been diagnosed with a stress-related illness as a result of being involved with particular work (as in the landmark civil case Walker v. Northumberland County Council (1995) [All ER ]). A key House of Lords ruling has recently provided guidance in this area.

3. Workplace Stress Barber v Somerset County Council (2004)
Key questions:
whether psychiatric harm to a particular employee is reasonably foreseeable
whether the employee has suffered injury attributable to stress at work;
Key principles
employer usually entitled to assume that employee can withstand the normal pressures of the job (unless made aware of some particular problem or vulnerability);
Employer generally entitled to take at face value what he is told by employee
Barber v Somerset County Council (2004) 2 All ER 835
The Barber case concerned a teacher who brought a claim in negligence against his employers for damages for injury to health, in the form of psychiatric illness caused by stress at work. (This case was the only one of four conjoined appeals in the Court of Appeal to appeal to the House of Lords. These cases were better known by the lead case, Hatton v Sutherland ([2002] 2 AII ER 1)). (In the four cases, two employees were comprehensive school teachers, one a factory worker and one a local authority administrative assistant).
It is established law that employers have a duty to take reasonable care of the health and safety of their employees and to not expose them to unnecessary risk. Whilst it is clear that employers have a duty to take care of the physical health of their employees, the extent to which this duty extends to the mental health of employees where this is adversely affected by work pressures was less clear. The decisions of the Court of Appeal and House of Lords in this case give significant guidance on the circumstances in which such a duty will arise and the steps that should be taken to satisfy this duty.
The Court of Appeal’s guidelines on when to award damages for stress were backed by the House of Lords and therefore stand as good law. Additional principles can also be taken from the judgment:
- once an employer knows that an employee is at risk of suffering injury from occupational stress, it is under a duty to do something about it;
- this duty continues until something reasonable is done to help the employee;
- certified sickness absence due to stress or depression needs to be taken seriously by employers:
- employers should investigate the employee’s problems and what can be done to ease them.

4. Workplace Stress House of Lords confirmed rules on workplace stress
Barber v Somerset County Council (2004)
House of Lords confirmed rules on workplace stress
- an employee can claim damages for workplace stress if
employer knew that he/she might suffer mental damage or
employee had warned employer that this might occur
Barber v Somerset County Council (2004) 2 All ER 835 House of Lords
Note:
House of Lords rejected any notion that a job can be so stressful that an employer is exposed to a claim by any employee who simply cannot cope ( N.B. public policy considerations);
Foreseeability of harm to mental health depends on what the employer knows about an individual employee;
Employer risks liability only if he knows that a particular employee is suffering stress because of the demands of the job but does nothing about it (Original case: Walker v Northumberland County Council (1995) IRLR 35 – where the employer actually increased the demands on the stressed employee)
Note: Healthcare professionals – chose to enter their professions and some element of pressure and stress part of the system of work under which they carry out their duties; stress at work is employee’s risk
Employers must ensure workplace is safe but can usually assume that professionals can handle normal pressures of the job.
Floodgates not open to employees who cannot cope with the normal stresses of the work.
See Johnstone v Bloomsbury Health Authority (1991)
Case concerned a Senior House Officer who alleged that he had been required to work 100 hours a week (his contract provided for a standard working week of 40 hours plus his being available on call for an average of a further 48 hours a week) and that this had resulted in his suffering stress and depression. Court of Appeal recognised the implied duty to take reasonable care not to injure their employee’s health and that the Authority’s rights to call for overtime should conform with this duty.

5. Working Time Regulations 1998
Primarily health and safety provision
Introduces limits on working time and rest entitlement:
working time – any period during which a worker is working at the employer’s disposal and carrying out activities or duties, including periods of training
48 hour limit on average working time
daily rest entitlement
weekly rest entitlement
rest breaks
annual leave
number of exclusions*, exceptions and right of individuals to opt out
The Working Time Regulations 1998 implement Council Directive 93/104/EC concerning certain aspects of the organization of working time (O.J. No. L307, , p.18) and provisions concerning working time in Council Directive 94/33/EC on the protection of young people at work (O.J. No. L216, , p.12).
The basic rights and protections that the Regulations provide are:
a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they want to*);
a limit of an average of 8 hours work in 24 which nightworkers can be required to work;
a right for night workers to receive free health assessments;
a right to 11 hours rest a day;
a right to a day off each week;
a right to an in-work rest break if the working day is longer than six hours;
a right to four weeks paid leave per year.
* Possible for individual written agreement to opt-out of the 48 hour average working week(UK is the only EU member state to make extensive use of the opt-out (
Regulations did not apply to workers in transport, sea fishing, offshore oil and gas, and junior doctors in training – see Working Time (Amendment) Regulations 2003
UK legislation:
The Working Time Regulations 1998
The Working Time Regulations 1999 (amending regulations)
The Working Time (Amendment) Regulations 2001
The Working Time (Amendment) Regulations 2002
Working Time (Amendment) Regulations 2003

6. Working Time (Amendment) Regulations 2003
Junior doctors:
amongst a number of sectors originally excluded from the Working Time Regulations 1998
rules now extended to include all other categories
exceptionally, provisions dealing with junior doctors rules will be phased in between August 2004 and August 2009
See

7. Implied Terms Duties of Employees to render personal service
to obey reasonable and lawful instructions
to exercise reasonable care and competence
to maintain fidelity (faithful service)
cooperation
honesty
not to compete
not to misuse confidential information
to account
Whistleblowing:
Exception to the general duty that confidential information should not be disclosed, where disclosure is in the public interest.

8. Implied Terms Dismissal from employment Fairness of dismissal conduct
capability
redundancy
some other substantial reason
The Employment Rights Act (1996) list five categories of potentially fair dismissal
reasons related to the individual’s capability or qualifications for performing the work – ‘capability assessed by reference to skill aptitude, health or other physical or mental quality’, and ‘any degree, diploma or other academic, technical or professional qualification relevant to the position’ held by employee (ERA 1996 s 98(3)) – typically a pattern of incompetence or neglectful incompetence is required but a single incident if sufficiently serious can suffice (Alidair v Taylor (1978) – a pilot dismissed after landing an aircraft in a dangerous manner)
reasons related to the employee’s conduct, e.g. gross misconduct (drug or alcohol abuse at work may be considered gross misconduct ) – typically spelt out in disciplinary rules - misconduct must normally be at work, but misconduct outside work may justify dismissal where it has a bearing on the employee’s position at work.
redundancy
statutory prohibition of continuing employment
‘some other substantial reason of a kind such as to justify the dismissal of the employee’ (e.g. failure to reveal a history of mental illness when asked about this a the job interview)

9. Dismissal from Employment
Dismissal for fundamental breach
conduct of the employee justifying immediate termination of employment without notice
incompetence
gross misconduct such as wilful disobedience, violence at work, dishonesty and other criminal offence

10. Disciplinary Procedures
Employing Authorities
right to suspend or dismiss an employee on grounds of gross misconduct, incompetence or incapacity (ill-health)
able to refer matters of competence and conduct to professional regulatory body
Department of Health guidelines concerning procedures see
The general terms and conditions of employment for NHS staff have been laid down in the General Whitley Council Handbook. Increasingly these terms and conditions are being devolved to individual Trusts to develop their own policies, e.g. for disciplinary procedures or relocation payments, even for staff on Whitley contracts.
Whitley Council
Ggeneral conditions of service for NHS employees negotiated in the Whitley Council at the Department of Health and usually adopted by NHS Trusts. These conditions are detailed in the General Whitley Council Handbook - primary reference for all such matters (e.g. allowances, procedures for discipline, etc.). As changes in conditions of service occur the handbook updated. Within Whitley, related professions are brought together into individual functional councils (e.g. Professional and Technical, Administration and Clerical). These councils regulate such areas as basic entry qualifications into the professions, grading criteria, salaries and leave entitlement through negotiations between representatives of the professions covered by the council (Staff Side) and officers and representatives of the Department of Health (Management Side).

11. Disciplinary Procedures
Random drug/alcohol tests:
O’Flynn v Airlinks The Airport Coach Company Ltd, EAT/0269/01, 15 March 2002
South West Trains Limited v Ireland, Appeal No. EAT/0873/01, 2 July 2002
Dismissal for failure to comply with a company zero drugs and alcohol policy upheld by Employment Appeal Tribunal
Dismissal not considered to be a breach of Human Rights
Dependency on alcohol or drugs is specifically excluded from the list of disabilities covered by the Disability Discrimination Act Employment Tribunals, however, classify addiction as an illness. The question therefore arises as to whether the employee in question is simply guilty of an isolated incident of misconduct through drug or alcohol abuse, or whether s/he is suffering from an addiction. The approach to be taken toward the employee is likely to differ depending on the circumstances – consideration being given to the nature of the employee's work, the risk posed to safety, and the reason why the drug or alcohol has been taken, before deciding to dismiss.
See for cases concerning alcohol/drug use and addiction.
A Human Rights point to consider is that, regardless of an anti-drugs and alcohol policy, it is important not to infringe on the employee's right to privacy, e.g . by preventing him /her from using alcohol their own time (provided that the employee's ability to do his/her job is not impaired).
N.B. Drugs or alcohol taken in own recreational time can remain in the bloodstream for 24 hours or more. If the result of a medical test to which the employee has consented is positive due to drugs or alcohol that the employee has taken in their own recreational time, but which has remained in the bloodstream for 24 hours or more, the position on whether the dismissal would be fair is less clear. The employer would need to consider the risk that the employee in question posed to public safety by virtue of his / her job, as well as any breach of the employee's human rights before deciding to dismiss. Obviously justification for dismissal will be more likely where the drug taking employee carries out a driving job or a job involving the operation of machinery etc and the employee's performance is severely impaired, and the safety of that employee and others is compromised.
Decisions of the Employment Appeal Tribunal have concerned dismissal as a result of a positive random drug test:
O’Flynn v Airlinks The Airport Coach Company Ltd, EAT/0269/01, 15 March 2002 dealt with the dismissal of a customer care assistant who had been dismissed for gross misconduct and failure to comply with the zero drugs and alcohol policy following a positive urinalysis and an admission of recent drug use. (The nature of her duties included assisting drivers in manoeuvring coaches and also being asked to serve hot drinks on moving coaches from time to time. The company’s policy of zero tolerance of drugs included a statement that a positive drug test would result in disciplinary action. Gross misconduct was defined as including reporting for duty with drugs in one’s body. ).
Both Employment Tribunal (ET) and EAT (Employment Appeal Tribunal) found it fair.
Technically the Human Rights Act 1998 did not apply owing to the dates on which the allegedly unlawful acts took place, however, the EAT did not think the policy of random testing and subsequent dismissal for a positive drugs test was in breach of the employee’s right to a private life (Article 8 of the ECHR). In dealing with the human rights argument that it was open to individuals to do what they wished in their private life outside work, subject to the constraint of the criminal law, the Appeal Tribunal held that the employer’s policies only affected the employee at work. It infringed on her private life to the extent that it required her to provide a urine sample as part of an established and unopposed random screening, and to the extent that no drugs having certain persistent detectable characteristics could be taken by employees in their private time without jeopardising employment. There was no suggestion that testing or the zero tolerance policy was unnecessary for safety reasons or was disproportionate.
Key Points
dismissal was within the ‘band of reasonable responses’;
Human Rights point about safety underlying the policy relevant to fairness – provides a compelling reason for fair dismissal:
in this case the policy was also held to be contractual – adds support to a policy which impacts on normal personal liberties.
South West Trains Limited v Ireland, Appeal No. EAT/0873/01, 2 July 2002, dealt with a train guard, whose position was said to be safety critical. A “random” urine test for drugs was imposed after the employer heard a rumour that his house was under surveillance by police concerning drugs. The test proved positive for cannabis and benzodiazepines. The employer’s drug policy was to ensure that no employee reported (or tried to report) for duty while unfit because of alcohol or drugs, or consumed or used them while on duty. The policy also stated that if traces of some drugs could be found during screening this would lead to dismissal. The policy itself was not challenged. The Appeal Tribunal relied upon a medical officer’s certificate issued following the examination that the employee was unfit for work and upheld the employer’s decision to dismiss as a reasonable one taken in the circumstances.

12. Disciplinary Procedures
Constraints on private life:
Whitefield v GMC (Privy Council 90/2001)
PC considered conditions imposed on GP by GMC for his continued registration
abstinence from alcohol, to submit to random blood and urine tests and to attend Alcoholics Anonymous not regarded, either together or individually, as interference with his right to respect for private life
claim to respect for private life was reduced to the extent that as a doctor his private life was in contact with public life and other potential interests
“right” to an unrestricted social life had to give way to the wider public interest in ensuring that he did not present a risk to his patients
conditions were lawfully made by a public authority, pursued a legitimate aim, (protection “of health”, “for the rights and freedoms of others”), and was “necessary” for a “pressing social need” and proportionate
Constraints imposed on private life have been upheld as reasonable in certain circumstances:
In Whitefield v GMC (Privy Council 90/2001), concerned a GP whose fitness to practice was seriously impaired because of severe depressive illness and the harmful use of alcohol. The Privy Council held that the GMC was entitled to to impose a condition for his continued registration that required him “to abstain absolutely from the consumption of alcohol” . This was not unreasonable and oppressive and the GMC was justified to conclude that, following initial failed steps simply to reduce alcohol intake, if he was to be allowed any form of practice, it could only be accompanied by a total and absolute ban on alcohol.
Key Points
no authority to support the proposition that a ban on the consumption of alcohol is, per se, an interference with the right to respect for private life under Article 8(1).
if something constitutes an interference under Article 8(1), it may be under Article 8(2), lawfully imposed pursuant to a legitimate aim and necessary and proportionate.