Implied Terms
If a written contract is silent on any issues or, indeed, there is no written contract then the law will imply certain terms which help to define the employment relationship. There are also some matters that do not normally appear in contracts but which go to the root of the relationship between employer and employee and are implied accordingly.
In the latter category will come such employees ‘ duties as:
1. to be ready and willing to work (except for example due to illness)
2. to exercise the reasonable skill which he professes to have in the job and adapt to new methods and techniques if the job requires it.(This is subject to the employer providing appropriate and adequate training in the new skills)
3. to exercise reasonable care in the performance of his duties.
4. to obey the employer’s orders provided they are reasonable and lawful.
5. to serve the employer with fidelity and good faith so that a relationship based on mutual trust and confidence can be fostered and maintained.(For example the employee must not during the course of employment be in competition with his employer or seek to solicit customers with a view to them going with him when he leaves the employment)
6. to be loyal and honest.
The employer has implied duties which include:
1. to ensure that he does not behave in a way that might destroy or seriously damage the relationship of confidence and trust between employer and employee. This duty applies to all management staff and should be referred to in their training.
2. to take reasonable care to ensure his employees ‘ safety although this is now largely a matter of statutory obligations under the Health & Safety legislation.
3. to pay his employees. This is most usually expressed in individual contracts of employment but it is not usually stated whether an employee is paid for the work done or for his services. Obviously pieceworkers are paid for the work done and the practice appears the same with workers paid on hourly rates.
On the other hand those paid weekly or monthly are normally paid for service, i.e. ready and willing to serve even if unable to do so because, for example, of illness when sick pay then becomes an issue. Implied terms for sick pay will only be relevant if the contract is unclear or silent on the matter.
4. to exercise all reasonable skill and care in the preparation of a reference for a former employee.
Other implied terms are many and varied but usually relate to specific types of case or specific areas of employment. For example where a term is customarily applied in a particular industry it may well be possible to argue that it should be implied in all contracts of employment in that industry. Professional advice is necessary in all individual cases.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contract PBS for expert consultation.
implied terms