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When does an employment contract begin?
An employment contract begins when the employee starts work, even if there's nothing in writing.The contract might begin even earlier if:
1. The person accepted the job offer verbally or in writing
2. The the offer was unconditional or the person met all the conditions (for example, the employer was satisfied with their references)
3. The employer set out the terms of the job in a clear and definite way, verbally or in writing.
What is the written statement of employment particulars?
An employee or worker has the right to a written document summarising the main terms of their employment.
This is called the 'written statement of employment particulars'. This includes information such as pay and hours of work.
In reality, the contract of employment is much broader than the written terms of employment.
What must be included in the written statement of employment particulars?
The following information must be included:
- name of employer’s name
- name of employee
- start date
- start date for ‘continuous employment’ (working for the same employer)
- job title/brief description of the job
- the employer’s address
- the locations or addresses where the employee will work
- pay- how often payment will be made and what date
- working hours and whether these are subject to change
- holiday entitlement and holiday pay including basis of calculation for this
- details of sick leave and pay
- any other paid leave
- other benefits such as childcare vouchers
- the notice period either side must give to end employment
- whether the role is permanent, temporary or fixed term
- details and length of any probation period
- whether the employee will work abroad, and any terms that apply
- training that must be completed by the employee or worker, including training the employer does not pay for.
What are express terms and implied terms in a Contract of Employment?
A contract of employment is a legally binding agreement between an employer and employee. An ‘employee’ is defined by the Employment Rights Act 1996 as an individual who has entered into or works under a contract of service or apprenticeship. A contract of employment has a combination of ‘express’ and ‘implied’ terms.
Express terms
Express terms are terms which are actually stated in writing or given verbally. Written express terms may not be restricted to written employment contracts, but can include a number of other documents, such as a staff handbook, unless the provisions are deemed not to have contractual effect.
Before drafting express terms, you need to be familiar with the relevant law, such as employee status, the rules governing written particulars, equal pay and the minimum wage, fixed-term and part-time work, flexible working, parental leave and working hours. The express terms must comply with any minimum legal standards such as the right to paid holidays and the right to daily and weekly rest breaks.
From 6 April 2020, all workers as well as employees, have a statutory right to a written statement of particulars of employment setting out certain key employment terms on their first day of work.
Implied terms
Terms can also be implied into contracts. This may happen because the term is:
- Incorporated by collective agreements (agreements with trade unions recognised by the employer).
- Incorporated by workforce agreements (for example, agreements with the whole workforce covering issues such as entitlement to breaks).
- Incorporated by statute.
- Incorporated into individual contracts by custom over a period of time.
- So obvious that the term is assumed to have been implied.
- Needed to give ’business efficacy’ to the contract (that is, to make the contract work properly).
Examples of terms that are implied into a contract of employment include:
A duty of mutual trust and confidence between the employer and employee.
The employer’s duty to provide a safe system of work and safe workplace.
The right to receive at least the national minimum wage or living wage (implied by statute).
The right to a minimum period of notice (implied by statute).
Equality relating to men and women’s pay (implied by statute).
As many terms as possible should be clearly set out in writing and given to the new employee before or when they start the job. This will help to avoid uncertainty or a dispute between the employer and the employee about the terms.
For advice on drafting contracts contact us on 01827 317070 or employment@pickerings-solicitors.com
