In this series, we delve into the XpertHR reference manual to find
essential information relating to one of our features. This month’s topic is
– It is important for contract terms to be in writing
– Terms may be assumed by the courts to be implied if there are no written
– The contract should be seen as a flexible compromise between the needs of
– The contract assumes great importance when the parties are in dispute
– Statutory protection for employees may be dependent on the contract terms
IMPORTANCE OF WRITTEN TERMS
Inevitably, there will be disagreements about the terms and conditions of
employment. These can be solved without recourse to litigation if the contract
terms are clear and unambiguous. If the terms are verbal, or not even
specifically agreed upon by the parties involved, the situation is ripe for
dispute, and there is nothing to hand to clarify the terms.
It should not be assumed that verbal terms cannot be proved. The claimant –
frequently the employee – must prove their claim, and if they have some
evidence, the burden of proof passes to the employer. The court or tribunal
will then make its decision on the balance of probabilities. In practice, the
evidence may be no more than what each party alleges it said or heard.
Therefore, both employee and employer statistically have a 50 per cent chance
If terms are verbally agreed, it is helpful to have a note of these terms,
either made at the time, or immediately afterwards. This could be placed on
file or take the form of a letter confirming the agreement or new term. This is
not absolute proof of the term, but it is admissible evidence, and can be
Key terms, such as work, location, hours, pay, holiday and notice, have to
be given to the employee in writing by the end of their second month of
employment. This is not a contract, but good evidence of the terms as seen by
If there is no written agreement on a particular issue, the court or
tribunal may assume a term is implied.
This could be based on:
– The conduct of the parties
– A custom in the workplace, trade or area of employment or the region of
– A custom implied in common law
– The fact the court or tribunal believes the parties would have agreed to
the term had it been put to them
Reliance on implied terms only results in uncertainty, as there can be no
guarantee that a term will be implied or what that term will be. As implied
terms cannot override an express term, it is advisable to put the terms in
IMPORTANCE OF THE CONTRACT
The contract does not have to be fair or reasonable – the courts will
enforce it as agreed. However, a contract too one-sided is not likely to result
in a long or harmonious relationship. The contract is best regarded as a
compromise between the (sometimes conflicting) needs of both parties.
There is no automatic power to change the contract terms. So an employer
wanting flexibility must build this into the employee’s contract. Similarly,
neither employer nor employee should assume that conduct contrary to the
contract terms, means the actual contract has changed. Conduct or custom can
fill the gaps in the contract, but do not override contract terms.
The most generally recognised benefit of the contract – especially a written
one – is its usefulness in avoiding disputes. It is decisive in a breach of
contract claim, as the contract terms alone can be taken into account.
It is less decisive in unfair dismissal claims, although it is certainly
important when the employee alleges constructive unfair dismissal. This is
where the employee has resigned, but their resignation has been caused by a
serious breach of contract by the employer (Employment Rights Act 1996, section
95(1)(c)). This breach must be a breach of an actual contract term such as in Western
Excavating (ECC) Limited v Sharp 1978 IRLR 27 CA.
But when deciding whether the dismissal was fair, the contract terms are not
all-powerful. The tribunal may decide the dismissal was fair, even if the
employer has broken the contract.
In Farrant v The Woodroffe School 1998 IRLR 176 EAT, the employer
insisted on a change of duties, even though it was in breach of contract. The
employer had been wrongly advised that it had a legal right to make the change.
However, taking all the circumstances into account, the Employment Appeal
Tribunal decided that the dismissal was fair.
Some statutory provisions are based on the contract terms, and protection against
unfair dismissal is only given to employees. It is dependent on the contract
being one of employment, and is generally denied to the self-employed. They
have some limited rights to claim unfair dismissal, such as when they have been
dismissed because they sought to exercise their right to a representative in
disciplinary or grievance proceedings (Employment Relations Act 1999, section
13 referring to the Employment Rights Act 1996, section 230(3)).
In other situations, statute provides a minimum benefit which replaces any
lesser term in the contract, as with statutory minimum notice in the Employment
Rights Act 1996, section 86.
Facts: A shop expected its staff to work additional hours in the
run-up to Christmas. The contract made no provision for overtime, simply
stating that their hours of work were ‘9am to 5.30pm with an hour for lunch’.
The staff had worked the additional Christmas hours for several years without
complaint, but this year there had been a pay dispute, and the employees were
They refused to work the additional hours, so the employer held a
disciplinary hearing and dismissed them. It was surprised when the tribunal
upheld the employees’ claims of breach of contract and unfair dismissal.
Comment: The contract set out the hours of work. The custom of
working the additional hours did not change the express contract term, so the
employer had broken the contract. It had dismissed the employees for refusing
to do something they were not legally bound to do. This is normally ruled as an
unfair dismissal, and would be here.
The employer should have carefully considered the work requirements and
included a contractual term permitting them to require staff to work overtime.
It would be difficult to change the contract to include such a term as the
employees would be unlikely to accept it and there is no automatic right to
change the terms. But, having restored good relations with staff beforehand,
this is what the employer needs to do. If this cannot be achieved, then the
employer would need to be more conciliatory in its overtime requests.
are written terms of employment important?
over the terms and conditions of employment can be solved without litigation if
the contract terms are clear and unambiguous. When the terms are agreed
verbally, or are not agreed to by both parties, the situation is open to
dispute. Terms agreed verbally should be noted either at the time of the
agreement, or immediately afterwards.
are written particulars and when should the employee receive them?
particulars of the key terms of employment, such as hours, pay, holiday and
notice, must be given to the employee in writing by the end of their second
month of employment. That statement is not the actual contract, but provides
good evidence of the terms as seen by the employer.
happens if there is no written agreement of the contractual terms?
court or tribunal may assume a term is implied based on the conduct of the
parties, a custom in the workplace or the industry as a whole, a custom implied
at common law, or its belief that the parties would have agreed the term had it
been put to them.
on implied terms results in uncertainty, so it is best to put all contract
terms in writing.
workplace custom or conduct override the written terms of a contract?
usually. The courts tend to enforce the contract as agreed. The contract does
not have to be fair or reasonable. An employer requiring flexibility must build
this into the staff contract. Neither employer nor employee should assume that
conduct contrary to the contract terms would change the contract. Conduct or
custom can fill the gaps in the contract, but cannot usually override the contract
terms. However, it is possible for custom to override written terms – if, for
example, it has been customary for many years to ignore a written term, and the
employees have reasonably come to expect it to be ignored.
what types of dispute are contracts important?
a breach of contract claim, the terms are decisive. They are less decisive in
unfair dismissal claims, although they are important when the employee alleges
constructive unfair dismissal. This is where the employee has resigned, but
their resignation was caused by a serious breach of contract by the employer.
redundancy cases, tribunals do not always use the contractual definitions when
interpreting the statutory redundancy provisions.
statutory provisions dependent on the type of contract?
statutory rights, such as unfair dismissal and redundancy pay, are dependent on
the contract being one of employment, and are generally denied to those who are