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33 Cards in this Set

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Implied terms in law

Implied terms in law are implied into every contract of employment.

Implied terms in fact

Implied terms in fact are not implied into every contract. They are case-specific and are included in the contract of employment.

Implied Terms for employer

Duty to provide work (if employee must maintain skills/knowledge)

Duty to pay wages/remuneration if no work (with exceptions)

Duty to indemnify employee in respect of expenses reasonably incurred

Duty to exercise reasonable care for the employer's physical and psychological well-being

Duty to exercise care for economic well-being of employees (but only if there is a term in contract that employee must act on but has not been made aware of)

Duty to maintain trust and confidence

Duty not to commit abuse of discretion or power (can also fall under trust and confidence)

Duty to provide work

Normally there is no such duty, unless:

1. Due to the nature of the employee's work, they must work at all times in order to maintain skills/industry knowledge.

2. There was an understanding between and employer and employee that a certain amount of work would be provided so that he can enjoy a certain amount of earnings.

Devonald v. Rosser and Sons (1906)

Understanding between and employer and employee that a certain amount of work would be provided so that he can enjoy a certain amount of earnings.

William Hill Organisation Ltd. v, Tucker (1998)

Spread betting business' senior dealer. Must keep up work to maintain key skills.

Put on garden leave.

Court ruled in Tucker's favour.

Breach v. Epsylon Industries (1976)

Chief engineer needed to work to stay on top of industry developments.

Held: Duty on employer to provide work.

Duty to pay wages/renumerate if there is no work

Normally, there is a duty. Unless:

1. Employer has to close down business through no fault of their own.

2. An employee is absent due to ill-health (still entitled to sick pay)

Wilsons and Clyde Coal Co. v. English (1938)

Responsibility to provide due care cannot be devolved to a victim's co-worker.

Johnstone v. Bloomsbury Health Authority (1991)

Junior doctors working for more hours than contractually obliged. Damaging to mental health.

Employer implied duty to exercise reasonable care overrides the employer's exercise of discretion based on express terms.

Implied duty can be partly judged by express contract terms.

Walker v. Northumberland County Council (1995)

Implied duty of care extends to psychiatric well-being of the employee if:

Recognised psychiatric illness, and

Attributable to the workplace

Malik v. BCCI (1997)

Employer had run a corrupt business

Employees could not find work elsewhere due to stigma associated with the employer (BCCI)

Reciprocal duty to maintain trust and confidence between employer and employee

Johnstone v. Unisys Ltd. (2001)

Employee will not be awarded damages on the basis of wrongful dismissal where the act or manner of dismissal violated employer's implied duty of trust and confidence.

Implied terms on employee

Duty to comply with reasonable orders and instructions. (Reasonable orders are subject to statute).

Duty to indemnify employer if actions of employee cause a loss to employer.

Duty to exercise care and perform duties competently.

Duty to adapt and cooperate with changes to the workplace.

Duty to maintain and preserve trust and confidence.

Duty of fidelity, loyalty and confidentiality.

Duty to disclose wrongdoing. (Only if senior employee, otherwise no such duty. Must disclose if another's wrongdoing).

Duty not to compete or work for competitors.

Duty not to make a secret profit.

Duty not to disclose confidential information.

Pepper v. Webb (1969)

Pepper refused reasonable order to plant plants.

Webb summarily dismissed Pepper.

Instructions from Webb and his wife were reasonable and lawful.

Pepper had thus committed a repudiatory breach of contract.

Donovan v. Invicta Airways (1970)

Donovan a freelance pilot.

Employer invited him to fly:

-Contrary to regulations.

-Had not maintained aircraft in safe condition

-Had been discourteous

Donovan had right to refuse and employer had committed a repudiatory breach.

Lister v. Romford Ice and Cold Storage Co. Ltd. (1952)

Employee had driven a lorry negligently. This led to injury to another employee.

Employee had breached implied duty to perform duties competently and with care.

Injured employee awarded damages from company

Employer entitled to recover damages equal to those paid to injured party.

When an employee injures another employee, the injured party may seek to recover damages from employer. Employer may then recover damages from negligent employee.

Secretary of state for employment v. ASLEF

Trade unions encouraged members to carry out instructions strictly in accordance with employer's rulebook in an attempt to disrupt business.

Breach of duty, employees would not carry out lawful instructions in a manner which would disrupt employer's business.

Cresswell v. Board of Inland Revenue (1984)

New computer system introduced. Employees refused to use it. Employer forbade use of old system.

Employees had breached their duty to adapt.

*Note: If changes to the nature of work of the employee are too great, then employer has attempted to vary contract terms. This means that the employee is relieved of their duty to cooperate.

Item Software (UK) Ltd. v. Fassihi (2004)

A company director is under a duty to disclose his own wrongdoing.

Hivac v. Park Royal Scientific Instruments (1946)

Workers using skills from job to do same skilled work (making valves) for competitor in their own spare time.

Held that employees had breached duty of good faith and fidelity, even if work was carried out in spare time.

Faccenda Chicken Ltd. v. Fowler (1986)

Employee a sales manager for a fresh chicken business.

Left employer to sell products to same customers. Took list of customers, pricing policies, info on goods.

No duty breached. Info not given in confidence and was not trade secrets.

Rights under national Minimum Wage Act 1998

s.1: Employees who qualify for minimum wage shall be paid as such.

s.23: Worker cannot suffer detriment for qualifying for NMWA or for raising action.

Leisure Employment Services Ltd. v. Commissioner for HM Revenue and Customs (2007)

The employer provides accomodation for employees, can deduct 'living accomodation' expenses from pay.

There is a set maximum on 'living accomodation' expenses.

Rights under Employment Rights Act (1996)

Right to receive a statement of particulars of employment.

-See: s.1 (rights), s.11 (enforcement)

Right of an employer not to suffer unauthorised deductions from wages.

-See: s.23, s.27

Right of an employee not to suffer detriment.

-See: s.44, s.45, s.47, s.47A-E, s.48

Right to receive a minimum period of notice.

-See: s.86

Right to be provided with a written statement of reasons for dismissal.

-See: s.92, s.93

Rights under Employment Relations Act 1999

Worker may be accompanied by a colleague or trade union official at disciplinary or grievance hearing.

-See: s.10

Worker cannot suffer detriment or dismissal for exercising a right.

-See: s.12

Right to raise a complaint at a tribunal on these grounds.

-See: s.11

Robinson-Steele v. RD Retail Services Ltd. 2006

Employers not paid over holidays but paid more when they are working. Employer claimed that this was a kind of "rolled up holiday pay".

ECJ (now CJEU) held that this was unlawful under EC Working Time Directive 2003/88/EC

Rights under Working Time Regulations (1998)

Source of rights in this act: EC Directive 2003/88/EC

Maximum weekly working time (48 hours per week)

-See: s.4(1), s.4(2)

Daily and weekly rest (11 consecutive hours out of 24).

-See: s.10, s.11, s.30(1)(a)

Annual leave (28 days paid in a holiday year).

Right not to suffer detriment (ERA 1996, s.45)*

*e.g. if employer attempts to force them to break WTR '98

Maternity rights

From: Maternity and Leave etc. Regulation (1999); Statutory Maternity Pay (General) Regulations (1986).

Employee has right to 26 weeks ordinary maternity leave and 26 weeks additional maternity leave.

During maternity leave, employee continues to receive non-payment benefits.

Employee entitled to 39 weeks of statutory maternity pay.

Compulsory 2 weeks leave after childbirth.

Paternity rights

Father must satisfy regulation 4(2) of the Paternity and Adoption Leave Regulations 2002.

If he does, he may take one week's paternity leave or two consecutive weeks unpaid.

Can take additional leave between 2 and 26 weeks.

Rights under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

A part-time worker has the right not to suffer:

-Less favourable treatment than a full-time employee.

-A detriment, solely for the reason that he/she is a part-time worker.

This right applies only if the treatment is:

-On the ground that the employee is part-time.

-Not justified on objective grounds.

Matthews v. Kent and Medway Towns Fire Authority (2006)

Part-time firefighters argued that they were engaged in some activities as full-time and had the same type of contract.

'Broadly similar' contracts are enough to claim part-time employment is comparable to full-time.

Rights under the Fied-term Employees (Prevention of Less Favourable Treatment) Regulations (2002)

Fixed-term employee has a right not to:

-Suffer less favourable treatment than a full-time employee

-Suffer detriment solely for the purpose that they are fixed-term employees.