The Terms and Conditions In a Contract of Employment - Essay Example

 The Terms and Conditions In a Contract of Employment Overview of contract of employment In a typical scenario, an employer (an individual or organization) may have some available job vacancy that he proceeds to announce. A selection and recruitment process is carried out to identify an individual or individuals to fill the position. Before the employee assumes the responsibilities, there is need for an employment contract. An employment contract is an “agreement between an employer and an employee which sets out their employment rights, responsibilities, and duties” (Directgov, 2012a). The employment contract may be written or agreed verbally in certain instances. Nonetheless, it is necessary, and an employee has a statutory right, to obtain a written statement of the employment terms some two months after the beginning of an employment in the event that no such formal agreement was made (Citizens Advice, 2012). The employee has to check his entitlement to this right as some may not be entitled to some statutory rights. By accepting a job offer, an employee agrees to abide by the conditions of authority relationship provided on the employment contract (Simon, 1951, p.294). These are referred to as the terms and conditions of the contract. Contractual terms and conditions and their relationship The contract of employment defines the rights of the employees that will help in solving problems that may arise in the course of the contract. The employee and the employer are bound by the written agreement until the contract ends or until the terms of the contract are adjusted (Directgov, 2012a). The termination of a contract is often preceded by a written notice to the employees while the terms and condition of a contract will be adjusted after an agreement between the employer and the employee. An employee will enter into an employment contract as soon as he/she takes on an employment to create the employment relationship (Vettori, 2007). The contract of employment may be written or verbal, but a written agreement is appropriate for a formal employment. The contract of employment will contain essential information; the details of employer/employees, date of commencement of the contract, place of work, role and duties of the employees, rate and mode of payment, sick pay arrangement, holiday leaf and pay, pension schemes, and the different policies governing the employment deal (Legal Service Commission of South Australia, 2007; Direct Advice, 2011). An employment contract will be defined by the terms and condition of the contract. There is some difference between terms and conditions as referred to here. The terms of an employment contract define all that an employer and an employee will expect from each other (Directgov, 2012b). The employer and the employee(s) have to agree on these terms of contract (Direct Advice, 2011) and the changes have to be made through an agreement by both the parties. On the other hand, conditions of contract are solely issued by the employer without consulting the employees, and they have to be followed by the employee in the contract period (Direct Advice, 2011). The contract terms refer to individuals’ mutual entitlements whereas the conditions often points at the employers’ requirements of the employees. Thus, they are both necessary to define a contract. The conditions of a contract can be changed by the employer after a timely notice to the employees and all the other parties that may be affected by the changes. Failure to issue a prior notice is a breach of contract. It is necessary that both the employees and the employers understand all that is contained in the contract of employment and their implications. The employee and the employer should be aware of the legally binding aspects of the signed contract, which forms the terms of the contract. In the event that either the employee or the employer breaks some term of the contract, the other party has the legal right of suing him/her for breach of contract (Directgov, 2012b) Collective agreements, trade unions, and employment tribunals At times, the agreements on terms and conditions of an employment can be made between an employer and the trade union or staff association on behalf of the employees (Directgov, 2012b). The employees have statutory rights to belong to some trade union (Citizens Advice, 2012). The trade unions often represent the interests of the employees. Such agreements are termed collective agreements; they are often stronger than an agreement that is made on individual basis. The agreements might apply universally to all the employees while in certain instances some terms will be specific to particular employees or departments. Besides, the terms may apply even to an employee who is not a member of such unions (Directgov, 2012b). An employee is then challenged to understand which agreements apply to them and which body they can entrust to represent their interests to the employers while making the agreements. There are legal bodies that deal with issues related to the breach of employment rights. Legislation has often played a key role in maintaining employment relationship (p.2).The bodies have gained famed recently due to the failures of traditional collective bargaining approaches in order to focus more on individual rights (Brown et al, 2000). In the Northern Ireland, such bodies are called employment tribunals and they consist of a professional judge and the one representative for the employer and employee (Citizens Advice, 2012). Issues such as racial/ethnic/gender/disability discrimination on employment, maternity right, payment issues, and many others are tackled by the tribunal. Express terms and implied terms Express terms provide in words or through writing the contents of an agreement between an employee and the employer (Inbrief.co.uk, 2012; Klass, 2010, p.131). They are the binding terms that have been agreed between the employer and the employee. The express terms of contract are often few and may include, but not limited to, the amount wages, hours of work per day, the nature of employment (full-time or part-time), type of work, holiday pay, the duration of holidays, sick pay and redundancy pay (Legal Service Commission of South Australia, 2007). Express terms may be verbal or written even, although oral express terms are often unreliable. The oral express terms are common in the daily formed contracts that may not necessitate the detailed formalities. In such cases, both the parties have to distinguish between a mere representation of thought and the actual contract term. An initial representation, a statement made prior to the contract, can be changed to an actual contract term if there is an agreement between the parties (Inbrief.co.uk, 2012). This is necessary for one party to sue the other who has breached some term of the contract. Alterations on the express terms may stem from regulations imposed by the government. For instance, some regulation was recently imposed on the employment of agency workers that requires the companies to consider the employees who have served for at least 12 years as permanent staff (Mundy, 2012). On the other hand, implied terms refer to all that an employer and employee expect from each other but that are not written down unlike the express terms (Klass, 2010; Directgov, 2012b). The employee and employer cannot write down everything; others are just understood to exist. Implied terms of an employment can arise in many ways namely implication in facts following inference from the intention of the parties (Hadjiyannakis, 1985, p.38), a statutory provision, or developed from some custom (Inbrief.co.uk, 2012). A term will be implied if it is necessary for the success of the contract (Directgov, 2012b). An employee will expect the employer to treat them well during the contract period. On the other hand, the employer will expect the employee to be responsible and be able to take good care of the company’s property that may be under his or her management or usage. Both the parties expect that the other will be honest and respectful (Directgov, 2012b) but this is not written down as one of the contract terms. Some terms are implied just because they seem obvious and needless to put into writing. In other instances, and this may be specific to a given organization, implied terms arise due to a custom or practice that has been adopted consistently and for a relatively long term within an organization (XpertHR, 2012a). Employers are bound to some practices that have become part of the organization (such as employee incentives) and they may not alter these conditions without informing the employees. The express terms are superior to implied terms except for some situations derived from statutory provisions such as minimum salaries and wages or the shortest allowed period of notice for contract termination (XpertHR, 2012b). It has to be recalled that express terms will define clearly, what is expected of each party in a contract agreement. It is easy to determine if some written term of the contract has been broken. However, the same is relatively difficult for implied terms. The decision as to whether some term, which has supposedly been broken, is implied may often be made by some court or tribunal (XpertHR, 2012a). Before an individual is sued for breach of contract, the tribunal will determine, for example, that a given term was necessary for an effective contract. The tribunal will determine if the term is implied by law or the circumstances that are specific to a particular case. There are statutory provisions in the UK defining the employment conditions like minimum wage, mode of payment, time off and holidays, sick leaf/pay, and all that pertains the rights of employees (Labour Relations Agency, 2011; Directgov, 2012c). Changes occur in the governments and these statutory provisions are reviewed each year. Different legal provisions governing employment have been formulated in the UK, some of which will be implemented more than three decades to come (Reeds Business Information, 2012). Similar statutory developments have existed in other countries like the US (Lubotsky, 1999). The tribunal or court may also deduce an implied term from the custom and practices that have been adopted at a given workplace of some period. All these considerations have to be made while focusing on the related express terms. In general, an express term will prevail if it is contradicted by an implied term of contract (Chandler & Waud, 2003, p.169; Legal Service Commission of South Australia, 2007; Chappell & Chappell, 2007; p.100). However, the court may act according to other discretions and criteria to determine otherwise. Reference List Brown, W et al. 2000, ‘The employment contract: from collective procedures to individual rights,’ ESRC Center for Business Research, University of Cambridge, Working paper No.171, Viewed March 14, 2012, http://www.cbr.cam.ac.uk/pdf/wp171.pdf. 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Mundy, S 2012, ‘Recruitment sector consolidates on new rules,’ The Financial Times Limited, 2012, Viewed March 14, 2012, http://www.ft.com/cms/s/0/e16b8bf6-6213-11e1-807f-00144feabdc0.html#axzz1p6utruJO. Reeds Business Information 2012, Legal Timetable: Future Deadlines, Viewed March 14, 2012, http://www.personneltoday.com/events/list.aspx?navigationid=10&type=10026. Simon, H 1951, ‘A Formal Theory of the Employment Relationship,’ Econometrica, Vol.19 No.3, pp.293-305. Vettori, S 2007, The employment contract and the changed world of work, Ashgate Publishing, Ltd, Hampshire. XpertHR 2012a, When are implied terms important? Viewed March 14, 2012, http://www.xperthr.co.uk/faqs/topics/1,3/express-and-implied-contract-terms.aspx?articleid=19759&mode=open. XpertHR, 2012b, To what extent are the terms of a contract binding? Viewed March 14, 2012, http://www.xperthr.co.uk/faqs/topics/1,3/express-and-implied-contract-terms.aspx?articleid=19756&mode=open#19756. Read More