Does The Contract of Employment
have to be in writing?
A contract of employment does not at present need to be in
writing. It can be verbal or written. An employee is, however,
entitled to a written statement of particulars of the terms
of employment after being employed for 2 months, if no such
particulars/contract have been provided by the employer. The
written statement of particulars should include the position
as regards job title, commencement of employment, pay, hours
of work, holidays and place of work. If no written statement
of particulars has been provided the employee may apply to
the Employment Tribunal who will determine the same. The Employment
Tribunal has jurisdiction to hear cases which solely relate
to employment law matters.
Can the employer change the employee's terms of contract?
It is difficult for the employer to change the terms of employment
without the employee's consent. Such consent may be verbal
or in writing or may even be implied from the fact that the
employee continued to work on the new terms for a significant
period of time whilst being aware of the change.
In some contracts, the employer expressly reserves the right
to unilaterally vary the terms of the contract. The courts
have indicated that a strict approach should be taken in the
interpretation of such provision. The contract must provide
in clear and unambiguous words the power to unilaterally alter
the terms of the contract. An employer would not be able to
vary or introduce new terms which would affect the employee's
fundamental rights under the contract, as opposed to simply
varying the contractual provisions for which the employer
is required to comply in any event, such as in relation to
holidays and pay.
If the employee does not accept the new change of terms, the
employer may decide to dismiss the employee and offer the
employment again on new terms, however, in doing so the employer
lays himself open to a claim for breach of contract or unfair
dismissal (especially where the correct procedures are
not followed).
The employee is, however, under a considerable duty to mitigate
his loss and it may be that although the employer may be initially
in breach of contract, the employee's refusal to accept a
new contract would not entitle him to much in the way of damages
if it is clear he has acted unreasonably.
An employee's remedies
If an employer is in breach of contract, the employee can
claim damages against the employer. The employee can do this
whilst remaining in employment. Alternatively, if the breach
should be serious the employee may consider himself as having
been dismissed and put in a claim for damages for wrongful
dismissal. Alternatively, if the change is a significant
one, the employee may be entitled to resign and allege constructive
dismissal.
Are there examples of any other breaches of contract by
the employer, other than varying the terms of the employee's
contract?
There is what is known as "mutual trust and confidence"
between employee and employer implied in every contract of
employment. The employer by his conduct may cause a number
of breaches of this trust and confidence. These include:
Non-payment
of salary
Harassment/abuse
of the employee
Non-consultation
with the employee over relocation
Other
aspects of UK employment law for employees include:
Landau
Zeffertt Weir Solicitors