Employment Contracts

The employment relationship between the employer and the employee is governed by the contract of employment. There is a distinction between a ‘contract of service’ (or contract of employment) in which the relationship is between employer and employee, and a ‘contract for services’ in which the relationship is between employer and independent contractor.

A contract of employment need not be in writing and may be oral. However, under Employment Rights Act 1996 s 1(1), an employer is under a statutory obligation to provide the employee with written details of the main terms of employment.

For the validity and formation of contracts each of the elements required for a valid binding contract must exist. There must be an offer of employment by the employer, accepted by the employee on the basis of an intention to create legally binding relations. There must also be valid consideration, usually in the form of remuneration paid to the employee in exchange for his agreement to carry out work for the employer. An employer is free to employ anyone hat he wishes, subject to certain statutory provisions.

Each party must have capacity to enter into a contract of employment and a contract of employment is illegal if it necessitates an act that is contrary to statute or public policy.

What are the Express and Implied terms of a contract of employment?

 Although the content of a contract of employment may vary and it is for the parties to decide what its exact terms should be, every employer must provide each of its employees with a written statement of the main terms of employment within two months of its commencement under Employment Rights Act 1996 s 1(2). Certain particulars must be included in a single document, namely the identities of the employer and the employee, the start date of the employment and continuous employment, particulars of remuneration, hours of work and holidays, the job title or description, and the employee’s normal place of work.

Certain other particulars must be given to the employee, but need not be contained in a single document; for example, they can be set out in a staff manual or in a collective agreement. This includes specifying any applicable disciplinary and grievance rules and procedures, including the identity of a person from whom the employee may seek redress in the event of a grievance arising out of the employment. If no such particulars exist, this fact must be stated.

How and when you can change the contract of employment?

The change in the contract of employment requires agreement between employer and employee and should be supported by consideration. Agreement may be express or implied. Express agreement to a change requested by the employer may come from the employee or, if his employment is subject to the terms of a collective agreement, from a trade union.

How TUPE operate?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) operate to transfer automatically the contracts of the employees concerned from one employer to the other. There is no dismissal of the employees transferred and no loss of their continuity of employment. The regulations also require that both the old employer (transferor) and the new employer (transferee) should inform and consult with the appropriate representatives of affected employees about the proposed transfers.

TUPE only apply to ‘a relevant transfer’. This is defined in very wide terms and includes four broad categories:

• Transfers within the public sector and ‘not for profit’ transfers;
• Transfers within public administration;
• ‘Standard transfers’; and
• Service provision changeovers 

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