Terms are incorporated into a contract of employment in the following ways:

(a). Express terms

Express terms are those actually agreed on by the parties. When the contract is written, the terms will appear in the document forming their contract. Where it is oral, they are verbally explained to the employee although practical difficulties can arise in proving what was agreed. Where a dispute or difference arises between the parties concerning a matter which is covered by an express term, then it is a question of the true construction of that term. The law does not lay down any special rules for the interpretation of employment contracts. However, the courts tend to require good faith, observance of specific terms and insist that terms which confer a wide discretion on one party, usually the employer, should not be exercised unreasonably in the circumstances. On the other hand, it is not for the courts to rewrite extravagant terms to which the parties have agreed. Although a contract of employment need not be in writing, it is of value with regard to such an important contract that its terms be reduced to writing or evidenced in writing. In this way disputes can be averted more easily and evidence will be easier to obtain.

 

(b). Collective agreements

Terms in a collective agreement are incorporated into a contract of employment. See sec. 2 for the definition of a collective agreement and also sections 38 & 39 of the Labor Disputes (Arbitration & Settlement) Act 2006.

 

(c). Implied terms

It would be impossible in making the contract at the outset to cover every eventuality, and as such there will be instances where the parties never reached any agreement on a particular point or never even considered the matter. And so, in such instances, it may be appropriate to fill the gap by implying a term into the contract. Therefore, in the absence of a written term certain terms may be implied. Important to note is that an implied term cannot contradict an express term, but an implied term can control the exercise of an express term. In United Bank v. Akhtar [1989] I.R.L.R 507, there was an express mobility clause in the contract between the bank and Akhtar who was a bank clerk, providing that bank had the right to move employees to any branch in the United Kingdom, and discretion as to whether or not it would give relocation allowances. Akhtar was given less than a week’s notice to move permanently from the Leeds branch where he worked to the Birmingham branch. He requested for three months’ notice to enable him sell his house and also the fact that his wife was sick. This was rejected by the bank relying on the mobility clause in the contract. On application to the Employment Appeals Tribunal, it was held that although an express term could not be contradicted by an implied term, it could control its exercise. And in this case a term was implied that the bank should give reasonable notice of exercise of the mobility clause to enable Akhtar comply with his contractual obligations to move.

Because employment contracts establish a somewhat unique continuing relationship the courts tend to imply some terms in circumstances where those terms may not be implied in other contracts. Implied terms of employment contracts may be on the basis of: Implied by facts (i.e. so obvious that it goes without saying); Business Efficacy (i.e. to achieve the desired end of the contract), Custom and practice (i.e. must be notorious/ well known, must be certain, must be reasonable, and must be a custom regarded as obligatory), Subsequent conduct of the parties(i.e. what they did after the employment commenced) and; Terms implied by law (i.e. may be implied by the common law or statute (statutory terms prescribed in various legislation).

 

IMPLIED STATUTORY TERMS

Statutory terms are rights based on laws passed by parliament. These terms will be implied in every contract and enforced by the courts even if the parties do not expressly agree upon them. They are contained in various statutes and these include:

1. The employment Act: Duty to provide work (sec. 40); Wages & deductions (sec. 40 (4), 41, 43, 44, 46, & 50); Weekly hours of work and rest (sec. 51 & 53); Leave (Annual, sick, maternity, paternity, and compassionate) & public Holidays (sec. 41(6) (c), 54, 55, 56, and 57); Sick pay (sec. 55); Notice periods (sec. 58 & 67); Disciplinary procedures (part VII) and; Continuous service & severance allowance (part VIII).

2. The Workers compensation Act: The Act regulates compensation to employees or their dependents (in case of death of the employee) for injuries sustained in the course of employment. See part II of the Act.

3. The National Social Security Fund Act: it obliges every employer to deduct and remit to the fund 5 % of the employees’ wages per month and also contribute 10% of the employee’s salary to the fund

4. The Occupational Safety & Health Act: regulates workers conditions of work and provides for duties obligations, rights and responsibilities of employers and employees.

5. Labor Unions Act: allows employees to form and belong to labor unions of their choice and rights conferred therein.

DUTIES OF THE EMPLOYER AS IMPLIED BY COMMON LAW

1. The duty to pay wages: Wages constitute the central consideration given by the employer under the contract. Generally, an employer is expected to pay the full wages. But where the employee is absent due to sickness, there is no general right to payment of wages.

2. Duty to provide work: Generally, while the employee is contractually obliged to attend at the work place during the agreed times for working, the employer is not obliged to furnish actual work to be done. All that is usually required of the employer is to pay the agreed remuneration for the period during which the employee is at work. Although having no work to do may deprive the employee of actual satisfaction, generally a loss of job satisfaction is always regrettable but by itself provides no cause of action.

However, this general principle does not apply where the employee’s remuneration depends entirely on being provided the tasks to perform. For example, where remuneration is based on piece rate or commission. In these circumstances, absent express stipulation to the contrary, it is an implied term that the employee will be supplied with sufficient work to earn such remuneration as could be reasonably anticipated. Where part of the agreed remuneration is to be on piece rate or commission basis, circumstances may warrant implying a similar term.

1. Duty of care: Employers owe a duty to take reasonable care for the safety of their employees. This duty is founded in the tort of negligence, but is also the subject of elaborate statutory provisions, notably, the Occupational Safety & Health Act of 2006. The employer’s common law duty is owed to each individual employee and employers must take due account of the different physical and other attributes of their various employees. For example, an employer owes a greater duty of care to a one-eyed man than a normal man in respect of risk of injuries to the eye. See Paris V Stepney Borough council [1951] 1 ALL ER 42. The duty of care under common law includes provision of, safe premises for work (unsafe premises include: structural defects, poor ventilation and slippery floors), safe equipment which the employee is expected to work with so that employees are not subjected to unnecessary risks, a safe system of work which includes (a) suitable working hours (b) training employees on the correct methods of work (c) provision of safety equipment (d) safe work- fellows so that employees are not a danger to others etc.

2. Duty to provide means of redressing grievances: Employers should reasonably and promptly afford an opportunity to employees to obtain redress of a grievance. Failure to do so may amount to breach of contract by the employer.

3. Duty to respect an employee’s privacy: Recent developments show that the time may be ripe for a duty to respect the privacy of employees. This mainly relates to non-intrusion by the employer in the employee’s private life.

 

DUTIES OF THE EMPLOYEE AS IMPLIED BY COMMON LAW

1. Competence & care: An employee must be reasonably competent to perform the job for which he was hired. Extreme incompetence will warrant instant dismissal. It has been held to be very unreasonable that an employer should be compelled to go on employing a man who, having represented himself as competent turns out to be incompetent.

Many employment contracts have elaborate procedures aimed at ensuring that the work is done with a reasonable degree of competence.

It is also an implied term of employment contracts, that employees will exercise a reasonable degree of care in the performance of their work. See Lister V Romford Ice & Cold Storage Co. Ltd.

1. Duty to obey reasonable and lawful orders: There is a duty upon employees to obey orders reasonably issued by the employer. Orders may be given at the work place or may extend to the time when an employee is not actually at work.

Generally, employers are not entitled to give orders regarding what employees do outside their working hours but there are some jobs which warrant giving certain instructions about what an employee should and should not do while off work. The orders must be reasonable. See Ottoman Bank V Chakarian [1930] AC 277.

Working as instructed is the employee’s basic consideration under the contract. Breach of this duty is invariably regarded as a fundamental breach of contract, which at common law entitles the employer to dismiss the employer without notice. The classic statement of the duty is found in the judgment of Lord Evershed M.R in Laws v London Chronicle (1959): “Wilful disobedience of a lawful and reasonable order shows a disregard-a complete disregard-of a condition essential to the contract of service, namely the condition that the servant must obey proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.”

1. Duty to co-operate: Over and above the question of obeying specific orders, employees are

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   Verlag: BookRix GmbH & Co. KG

   Tag der Veröffentlichung: 14.03.2023
   ISBN: 978-3-7554-3567-9
   

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   Widmung:
   Labour law is made up of two components, that is, employment and trade unions. The Philadelphia 1944 Labour Organisation stated that; labour is not a commodity and therefore you can’t put a price on it. They were concerned with the socio-economic injustices at the time including slave trade. The main legislation is the Employment Act 2006 The structure of society during slave trade was between master and servant. A master owned a salve, that is, ownership of a human being by another. During slave trade, a slave did not have rights and hence had no choice of employment. They lived a life of bondage. In slave societies, there were free men and unfree men. The freemen determined working conditions.