Formation and Terms of Contract

Hawker Siddley v Rump (1979)

Oral statements have same status as written docs – disadv is one of proof

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ERA 1996, s 1

Wriiten statemnts are required by statute

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ERA 1996, s 8(1)

Employees have right to be given a written itemised pay statement (it contains e.g. gross amount of wages/salary (s 8(2))

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Sec of State for Emp’t v ASLEF (No 2)(1972)

Most staff handbooks tend to be nothing more than codes of conduct and are sig only because their breach might indicate incompetence or misconduct – they are not usually strict terms of the contract (also, work to rule)

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Ford v AUEFW (1969)

Accepted Otto Kahn-Freund’s views re legal enforceability of CAs

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Monterosso v ITF (1982)

Where legal enforceability of CA = at issue, then the only one q’n = whether or not there is a s 179 statement – other q’ns re parties’ intentions are irrelevant

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National Coal Board v NUM (1986)

However, ambiguities re ‘provision’ (however worded) – here, words ‘binding’ and ‘being bound’ = equivocal and did not mean ‘legally bound’ – although no doubt correct, indicates source of difficulty

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National Coal Board v Galley (1958)

CA: by def’s personal contract, his wages were to be regulated by those national agreements for time being in force, and contractwas to be subj to those agreenments and so since NACODS agreements were a national agreement, def bound by it

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Gascol Conversions v Mercer (1974)

Lord Denning: where there is a written contract, where parties reduced agreement to writing, it is writing which governs their relations – it is not permissible to say they intended something different

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Systems Floors v Daniel (1980)

D could adduce evidence to show the commencement date was actual starting date-differentiated Mercer on basis that it onvolved a signed contract of emp’t whereas here, D was merely signing to ack receipt of statement

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Alexander v Standard Telephone (No 2)(1991)

Where a doc is expressly incorporated by general words, it is still nec to consider, in conjunction with words of incorporation, whether any particular part of that doc is apt to be a term of the contract-irrelevant re another doc itself not contract

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Marley v Forward Trust Group (1986)

CA terms capable of being incorp’d into contracts of personal service and when they are thus could be enforced by employee – also, where redundancy situation arose, employers could not rely on mobility clause since mobility clause and redundancy term

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Johnstone v Bloomsbury HA (1991)

CA: express terms allowing extraordinary amount of overtime was subj to control of an implied terms that employer must take reasonable care to ensure health and safety of employees

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United Banks v Akhtar (1989)

Although implied term could not override or contradict an express term, tnhey could be used to control the exercise of them

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Scally v Southern Health & Social Services Board (1991)

Employers have a duty to bring contingent rights to employees’ attention – conditions: terms not neg’d with ind employee; particular term confers valuable contingent right;employee, in all circums, cannot reasonably be expected to be aware of term un

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Sim v Rotherham BC (1986)

As members of a profession, contractual obligns of teachers were more likely to be defined by nature of their profession than detailed specifically-these professional obligns included a duty to cooperate in the running of schools in acc with the reas

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Wessex Dairies v Smith (1935)

Employee in breach of fiduciary duty of canvas employers’ employees whilst still in employers’ emp’t

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Faccenda Chicken v Fowler (1986)

Re confidential info:1.nature of emp’t; 2.nature of info itself;3.whether employer impressed on employee confid’y of info;4.whether relevant info can be easily isolated from other info which employee is free to use or disclose

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Isle of Wight Tourists Board v Coombes (1976)

‘intolerable *****’ – the relationship between somebody in position of director of board and personal sec must be one of complete confidence they must trust each other, they must respect each pther

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Malik v BCCI (1979)

HL: employees’ contracts contained implied term that bank would not, withouty reasonable and proper cause, conduct itself in manner likely to destroy or seriously damage the relationship of confidence and trust between empoyer and employee

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Courtaulds Northern Textiles v Andrew (1979)

Duty breached where employer undermined authority of senior staff over subordinates

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Helmet Integrated System v Tunnard (2007)

CA refused to imply term that employee cannot prepare to compete whilst still in empt with emplotyer

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Shepherd Investments v Walters (2007)

Q’n of what amounts to preparatory acts in est’g competing business be considered illegitimate will depend on facts of each case

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Neary v Dean of Westminster (1999)

Held: undermined implied duty of mutual trust and confidence so that there was a breach of that implied term, which meant the profits were secret profits, which was in breach of that aspect of good faith duty

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Lister v Romford Ice & Cold Storage (1957)

The employee is under a contractual oblign of care in the performance of his duty – he would perform his duty with proper care

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Halford v UK (1997)

Such recording without knowledge of employee, was a breach of right to priv life and correspondence – awarded £100,000 for non-pecuniary loss

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Jones v Associated Tunnelling (1981)

‘lowest common denominator’ – power in employer to direct employee to work any place within reasonable daily reach of their home

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Courtaulds Northern Spinning v Sibson (1988)

Worker required to move another depot following union membership dispute – held: request could only be reasonable if made ‘foe genuine operational reasons’

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Cresswell v Board of Inland Revenue (1984)

Employer replaced trad manual method of tax coding with computerised system-employees unsucc’y sought declaration of breach of contract in requiring them to operate computerised system

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ERA 1996, s 4

Employer must notify employee of variation to contract (** 1-7, 11 &12: ref can be made to a tribunal e.g. failure to provide statement within 2 months (s 11))

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Turniff Construction v Bryant (1967)

The statutory statement is not the contract, it is not even conclusive evidence of contract terms

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Sagar v Ridehalgh & Son (1931)

If a custom is to have legal effect, it must be ‘reasonable, certain and notorious’

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Garratt v Mirror Group Newspapers (2011)

Custom and practice (applied since 1993) that employees would not be entitled to contractual enhanced redundancy scheme unless they signed a compromise agreement constituted an implied and overriding term

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Shumba v Park Cakes (2013)

Custom and practice guidance: how many occasions and how long; same throughout period; extent of publicising; described; express contract; equivocalness

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Wiluszynski v Tower Hamlets LBC (1989)

A person is not treated by the law as having chosen to accept that which is forced down his throat despite his objections – employer of large workforce not required to physically eject defaulting employee from office

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Miles v Wakefield MDC (1987)

M disentitled himself to salary for Sat mornings by declining to work on Sat mornings in acc with his duty; where industrial action takes form of working inefficiently, the employer may decline to accept any work and worker will not then be entitled

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Mears v Safecar Security (1982)

A term that wages would be paid during sickness must be implied, unless employers could show otherwise, which they failed to do – also, the implied sick term would provide for deductaion of social security benefits received by M

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Collier v Sunday Referee (1940)

Classical view: no duty to provide work

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Devonald v Rosser (1906)

Held: nec implication from contract terms (which provided for payment by that piece) that employer would find him reasonable amount of work to do and his damages were assessed by ref to his average earnings over 6 months

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Clayton & Waller v Oliver (1930)

O to play leading role in musical – employer reneged- entitled to damages for loss of oppty to enhance his reputation

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Turner v Sawdon (1901)

Old view: CA rejected argument that failure to provide work would mean employees’ skills would deteriorate, denying the employer had a duty to keep the employee in service in such a manner as to enable him to become au fait with his work

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Turner v Goldsmith (1891)

Implied term that salesman paid by commission that he would be sent reasonable supply of sample to sell

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Provident Financial v Hayward (1989)

Fact that accountant’s skilss would not atrophy in period under consid’n treated as relevant consid’n

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William Hill v Tucker (1998)

CA: mainly due to particular contract’s construction, employee held unique position and maintenance of his skills in this developing area did require frequent practice (contrast with Christie v Johnston Carmichael (2010))

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British Aircraft Corp’n v Austin (1979)

General implied duty on employers to exercise care – this is primarily a duty to take reasonable care for safety of emploees and extends to acting reasonable in dealing with complaints re lack of safety drawn to their notice by employees, e.g. failin

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Spring v Guardian Assurance (1994)

Held: there was also implied term in contract of emp’t which places duty on employer to take due care and skill in preparation of references

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Breach v Epsylon Industries (1976)

It is nec to look at background to contract to see how it should be construed, and whether a term ought not to be implied that in the circums there was an oblign on employers to provide work suitable for e.g. a chief engineer

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SG &R Valuation Service v Boudrais (2008)

No express ‘garden leave’ provn – HC: their righto work infringed as they needed to work to become au fait with skills; however, employee could not invoke right to work unless they were ready and willing to work

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Formation and Terms of Contract

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