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Summary Employee Contract (LLB Notes)
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Employee Contract notes from City University, LLB - should be purchased with 'Employee status' notes too
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EMPLOYER CONTRACTNote: remember there are express + implied terms (implied by statute or common law)
Two most common types of contracts:
1. The indefinite contract – continuing contract which is terminable by either side;
2. Fixed term contract – definite time period
-No legal requirement for contract of employment to be in writing – Can be oral, written or both
-Legislative provisions in Part I ERA 1996 requires employer to give written notice of basic terms
Dacas v Brook Bureau
Dacas worked for Wandsworth LBC (on assignment by Brook Bureau) as a cleaner, dismissed for
rudeness to a visitor, claimed unfair dismissal, Dacas had neither a contract of service with
employment agency, nor with council held Tribunal erred in law, found employed by Brook Street
Where no written contract exists, law requires employers to provide a written statement of terms to
their employees must set out minimum details about terms governing employment relationship
A contract of employment will usually be made up of two types of contractual terms. These are:
Express terms
Implied terms
Express contractual terms
Express are those that are explicitly agreed between you and your employer and can include:
Amount of wages, including any overtime or bonus pay
Hours of work, including overtime hours (limit most employees on max hours work per week)
Holiday pay, including how much time off you are entitled to (nearly all full-time workers are
entitled by law to 28 days' paid holiday – they may be entitled to more under their contract. Part-
time workers are entitled to a pro rata amount)
Sick pay & redundancy pay
How much warning (notice) the employer must give you if you are dismissed
Implied Terms
In some situations, even if written contract, court will imply terms by common law or statute
Under common law there may be Employers duties and Employees duties
Sometimes there are set clauses, but sometimes not, main ones are employer and employee
duties – e.g. provide safe place, equipment; employees is to go work, if miss need sick notice
Terms Implied by Statute
Implied Terms found in Working Time Regulations 1998 (implements EU- Working Time Directive
Note: the regulations apply to Workers as well as Employees – it encompasses them both
Regulation 2 – what ‘working time’ means in relation to a worker
(a) Any period of working, at his employer’s disposal + carrying out his activity or duties;
(b) Any period during which he is receiving ‘relevant training’; and
(c) Any additional period which is to be treated as working time under the relevant agreement
Some people are required to stay on premises – for on call out times
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,On Call Time – e.g. doctors
Sindicato v Conselleria: On Call Time is when a worker is at his place of work – not away from work
and able to pursue his own leisure activities, as per the criteria in Reg 2(a) – e.g. any doctor if on call,
even if sleeping considered to be working, so would get paid still
Landes v Jaeger: held on-call time spent at a hospital was working time as the criteria in Reg 2(a) was
met, even though the Doctor was allowed to sleep when not required
Hughes v Jones
Held working time included the period the worker was on call between 9pm and 8am – seven days a
week, during which she occupied a flat on site at reduced rent still considered to be working
Other definitions of working time include:
Lunch break spent at leisure – not working time;
‘Working Lunch’ - is working time; (e.g. if meeting during lunch, still paid)
Time spent working abroad is working time;
Travelling to and from work – not working time, but in the case of Federa v Tyco Security held
travelling to and from work where worker had no fixed place of work and travelled to see
different customers at various locations was working time
Almost all rights & limits introduced by Regulations are subject to exceptions + qualifications –
oWeekly working time: no worker is allowed to work longer than 48 hours per week. (employer
cannot ask to work more than 48hours, unless you agree to it)
oDaily rest periods: 11 hours consecutive rest in every 24 hours. (particularly for lorry drivers)
oWeekly rest period: at least 24 hours uninterrupted rest in each 7-day period (least 1 day off)
oDaily rest: minimum two 20 minute rest breaks, provided working day is longer than 6 hours;
oAnnual Leave: 5.6 weeks paid annual leave (ie 28 days for every 5 day week);
oOpt–out agreements: worker may agree with his employer to opt-out the 48hr time limit. The
worker can terminate it at any time with 7 days notice to employer opt-out agreement is only
binding if employer keeps an up-to-date record of workers who have agreed to opt-out
An employer cannot make a worker sign an opt-out agreement
If a worker refuses and is dismissed= treated automatically as unfair
To take employer to tribunal need to work 1yr e.g. for UD, but for opt out agreements no set time
Zero Hours Contracts (casual contracts)
To achieve flexible working – hours of work deliberately left undefined and unguaranteed
Employer not obliged to offer minimum amount of work or pay (and can work anytime)
Employees may be required to work at any time
When zero hour contracts first arose employers tried to ensure only work for 1 person so only 1
contract, but then legislation introduced to ensure this does not happen
Small Business, Enterprise and Employment Act 2015
In 2014 Government announced plans to ban exclusivity clauses in zero hours contracts
s.27A renders unenforceable any term prohibiting worker from working under another contract
Rest Periods
Rest period depends on if adult or young worker – adult is 18 or over + young is 16 and over
Daily Rest Period: An adult worker is entitled to 11 consecutive hours of rest in each 24 hours
during which he works for an employer. A young adult is entitled to 12 consecutive hours
Adult workers entitled to daily rest periods during working time provided work longer than 6
hours – break must be uninterrupted period of not less than 20 minutes (away from workstation)
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, McCartney v Oversley: held ‘on-call’ time of a live-in employee was working time and could not
therefore count as a ‘rest-period’ even if the employee was entitled to ‘rest’ when on call
Weekly rest period: An adult worker is entitled to an uninterrupted rest period of not less than
24 hours in each 7days when working for the same employer
Annual Leave and Holiday Pay
Under UK common law there is no entitled holiday pay – introduced by Working Time Regulation
Initially entitlement was 4 weeks. Under Working Time (Amendment) Regulations 2007, holiday
entitlement increased to 5.6 weeks (or 28 days for a 5 day a week employee) from 2009
A worker’s ‘leave year’ will normally be specified in his contract of employment. If it is not is
starts on the date he commences employment – e.g. leave year starts April, but start working for
them in December, holiday entitlement will be worked out on a pro rata basis
British Airways v Williams: SC looked at what constituted holiday pay and held it amounted to
‘normal remuneration’ including overtime + commission payments– if overtime is part of normal
working day, for a better rate not the basic rate
Regulation 13(9) imposes following conditions on a worker’s entitlement to paid leave:
(a) Leave may be taken only in the leave year in respect of which it is due;
(b) A worker’s leave entitlement may not be replaced by a payment in lieu (except where worker’s
employment is terminated)
MPB Structures v Munro: held payment for annual leave must be made at the time when the leave
is taken to satisfy the Regulation –employer decided would pay extra every month + holiday pay was
part of remuneration – but found unlawful, they need to pay the basic rate and holiday too
Therefore it is unlawful for an employer and worker to choose to “roll-up” holiday pay by agreeing
that pay for holidays should form part of the wages throughout the year.
Other cases relating to annual leave and sick pay:-
Pereda v Madrid: held under Article 7 of the Directive, workers who are sick during a period of
annual leave are entitled to take that leave at a later date, which if cannot be taken in the current
year, may be taken in the following year.
NHS Leeds v Larner: Mrs Larner who had been sick for a year (2009-10) and whose employment was
terminated on April 2010 was entitled to be paid for annual leave at a time when she was not sick
Summary of Basic Working Time Rights
Maximum working week 48 hrs/week
Daily break 20 mins/6 hrs
Daily rest 11 hrs/24 hrs
Weekly rest 24 hrs/7 days
Paid annual leave 5.6 weeks/p.a
Protection of Wages Legislation
If an employer fails to pay wages under the employment contract, employee or worker can rely on
the protection of wages legislation set out in Pt II of the ERA 1996
Workers basic rights in s.13 whereby an employer must not make deductions from wages unless
(a) It is authorised by statute (i.e. PAYE and National Insurance); or
(b) It is authorised by the worker’s contract; or
(c) The worker has previously signified in writing his consent to the deduction of it
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