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    Express Implied Terms and Post Termination Restraints

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    nahian ayman shabab
    This document discusses express and implied terms of employment contracts as well as post-termination restrictions. It outlines that employers must provide written statements of employment terms within two months and these must include names, dates, pay rates, and hours of work. Even without a formal contract, evidence like offer letters can demonstrate terms. Implied terms include duties of the employer to pay, provide work, and ensure health and safety as well as mutual duties of trust and confidence. After termination, employees have duties around confidential information and trade secrets. Restrictive covenants preventing activities post-employment are prima facie void unless reasonable in duration, geography and protecting legitimate business interests in a minimally restrictive way.

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    Express Implied Terms and Post Termination Restraints

    Uploaded by

    nahian ayman shabab
    20 views3 pages
    This document discusses express and implied terms of employment contracts as well as post-termination restrictions. It outlines that employers must provide written statements of employment terms within two months and these must include names, dates, pay rates, and hours of work. Even without a formal contract, evidence like offer letters can demonstrate terms. Implied terms include duties of the employer to pay, provide work, and ensure health and safety as well as mutual duties of trust and confidence. After termination, employees have duties around confidential information and trade secrets. Restrictive covenants preventing activities post-employment are prima facie void unless reasonable in duration, geography and protecting legitimate business interests in a minimally restrictive way.

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    This document discusses express and implied terms of employment contracts as well as post-termination restrictions. It outlines that employers must provide written statements of employment terms within two months and these must include names, dates, pay rates, and hours of work. Even without a formal contract, evidence like offer letters can demonstrate terms. Implied terms include duties of the employer to pay, provide work, and ensure health and safety as well as mutual duties of trust and confidence. After termination, employees have duties around confidential information and trade secrets. Restrictive covenants preventing activities post-employment are prima facie void unless reasonable in duration, geography and protecting legitimate business interests in a minimally restrictive way.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    20 views3 pages

    Express Implied Terms and Post Termination Restraints

    Uploaded by

    nahian ayman shabab
    This document discusses express and implied terms of employment contracts as well as post-termination restrictions. It outlines that employers must provide written statements of employment terms within two months and these must include names, dates, pay rates, and hours of work. Even without a formal contract, evidence like offer letters can demonstrate terms. Implied terms include duties of the employer to pay, provide work, and ensure health and safety as well as mutual duties of trust and confidence. After termination, employees have duties around confidential information and trade secrets. Restrictive covenants preventing activities post-employment are prima facie void unless reasonable in duration, geography and protecting legitimate business interests in a minimally restrictive way.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
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    Express/Implied Terms and Post Termination Restraints

    1. Express Terms

     S.1 Employment Rights Act 1996


    o At beginning of employment, employer must give written statement of particulars of
    employment within 2 months
    o Can bring claim asserting failure but failure does not give rise to claim on its own
    o Written particulars which statement must contain:
     Names
     Dates
     Continuous employment periods
     Pay
     How calculated
     Hours
    o S.2(4) ERA – some items must be in ONE document:
     Names
     Date of commencement
     Date of continuous service
     Rate and frequency of pay
     Hours of work
     Holiday entitlement
     Job title
     Place of work
     If no formal contract or written particulars, can gather other evidence to demonstrate contract
    o E.g. offer letter, handbook and policies, job advert
     Other terms may appear
    o Garden leave
    o Suspension without pay
    o Mobility clauses
     I.e. may be required to work somewhere else.
    o Variation
    o Right to search
    o Restriction of email/internet

    2. Implied Terms

     Implication by:
    o Statute
    o Custom/past conduct
    o Officious bystander test
    o Business efficacy
     Duties upon employer as implied conditions
    o To pay
    o To provide work
     Arguably no longer exists as long as payment is given. Depends on facts of case,
    e.g. actor is dependent on publicity from work despite pay
    o Health and safety
     Reasonable care for employee. Common law, statutory and tortious duties
    o References
     Duty to take reasonable care if reference given (no duty to provide one)
    o General duty of care
     Difficult to run
     Mutual duties upon employer and employee
    o Trust and confidence
     Physical/verbal abuse
     Harassment
     Deception
     False accusations
     Duties upon employee
    o To provide personal service
    o Reasonable skill, diligence and care
    o Good faith and confidence
    o Duty to obey lawful orders (if reasonable)

    3. Post termination restraints

     Confidential information
    o Duty can extend beyond contract but is more narrow. Must be:
     Trade secret; OR
     So highly confidential as to amount to a trade secret
     Trade secret
    o Faccenda Chicken v Fowler [1996]
     Look at circumstances to decide what trade secret is.
     Nature of employment
     Nature of information
     Whether employer impressed upon employee the confidentiality
     Whether information could be isolated from other information which can be
    disclosed

    4. Restrictive covenants

     To prevent someone from doing something once relationship broken down


     Court does not like control of behaviour after contract. Some allowed.
     Prima facie VOID and UNENFORCABLE, UNLESS:
    o No further than necessary
    o Protect legitimate interests of business
    o Reasonable
     Types:
    o Non-competition
    o Non-dealing
    o Non-solicitation/poaching of customers or employees
     Blue pencil test
    o If term too wide but can easily be amended, court will do so
    o Will not redraft a clause
     Reasonableness factors:
    o Duration of restriction
    o Geography
    o Needs/interests of business
    o Duties of the employer
    o Whether a lesser restriction would suffice
     The impact of wrongful dismissal on restrictive covenants
    o If dismissed in breach of contract or constructive dismissal, restrictive covenant is
    unenforceable
     Remedies
    o Damages
    o Injunctive relief

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