Express/Implied Terms and Post Termination Restraints

1. Express Terms

 S.1 Employment Rights Act 1996

o At beginning of employment, employer must give written statement of particulars of
employment within 2 months
o Can bring claim asserting failure but failure does not give rise to claim on its own
o Written particulars which statement must contain:
 Names
 Dates
 Continuous employment periods
 Pay
 How calculated
 Hours
o S.2(4) ERA – some items must be in ONE document:
 Names
 Date of commencement
 Date of continuous service
 Rate and frequency of pay
 Hours of work
 Holiday entitlement
 Job title
 Place of work
 If no formal contract or written particulars, can gather other evidence to demonstrate contract
o E.g. offer letter, handbook and policies, job advert
 Other terms may appear
o Garden leave
o Suspension without pay
o Mobility clauses
 I.e. may be required to work somewhere else.
o Variation
o Right to search
o Restriction of email/internet

2. Implied Terms

 Implication by:
o Statute
o Custom/past conduct
o Officious bystander test
o Business efficacy
 Duties upon employer as implied conditions
o To pay
o To provide work
 Arguably no longer exists as long as payment is given. Depends on facts of case,
e.g. actor is dependent on publicity from work despite pay
o Health and safety
 Reasonable care for employee. Common law, statutory and tortious duties
o References
 Duty to take reasonable care if reference given (no duty to provide one)
o General duty of care
 Difficult to run
 Mutual duties upon employer and employee
o Trust and confidence
 Physical/verbal abuse
 Harassment
 Deception
 False accusations
 Duties upon employee
o To provide personal service
o Reasonable skill, diligence and care
o Good faith and confidence
o Duty to obey lawful orders (if reasonable)

3. Post termination restraints

 Confidential information
o Duty can extend beyond contract but is more narrow. Must be:
 Trade secret; OR
 So highly confidential as to amount to a trade secret
 Trade secret
o Faccenda Chicken v Fowler [1996]
 Look at circumstances to decide what trade secret is.
 Nature of employment
 Nature of information
 Whether employer impressed upon employee the confidentiality
 Whether information could be isolated from other information which can be
disclosed

4. Restrictive covenants

 To prevent someone from doing something once relationship broken down

 Court does not like control of behaviour after contract. Some allowed.
 Prima facie VOID and UNENFORCABLE, UNLESS:
o No further than necessary
o Protect legitimate interests of business
o Reasonable
 Types:
o Non-competition
o Non-dealing
o Non-solicitation/poaching of customers or employees
 Blue pencil test
o If term too wide but can easily be amended, court will do so
o Will not redraft a clause
 Reasonableness factors:
o Duration of restriction
o Geography
o Needs/interests of business
o Duties of the employer
o Whether a lesser restriction would suffice
 The impact of wrongful dismissal on restrictive covenants
o If dismissed in breach of contract or constructive dismissal, restrictive covenant is
unenforceable
 Remedies
o Damages
o Injunctive relief