The employment relationship is the context within which intricate interactions between employees, who may be unionised, and employers are conducted, both collectively and individually (Kelly, 1998 cited in Rose, 2004 p.6) Potential for conflict between employee and employer interests Unequal nature of the employment contract
The ways in which the employment relationship is regulated
The employment contract:
to examine the inequality of the employment contract
to outline the duties upon employer and employee within the employment contract to explain the indeterminate nature of the employment contract The Contract of Employment: A relationship of equals?
The contract of employment ‘exhibits an individualism which necessarily ignores the economic reality behind the bargain. The parties are not equal, even in their ability to go to law’. (Lord Wedderburn, The Worker and the Law p.142)
Kahn-Freund on the Labour Contract:
‘ ... the relations between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and subordination may be concealed by that indispensable figment of the legal mind known as the ‘contract of employment’. From Kahn-Freund Labour & The Law (1983, p. 18) Sources of the Employment Contract in the UK:
Custom and Practice
Awards under Statutory Provisions
Importance of ‘case law’ in interpreting legislation
Only in exceptional cases must the contract itself be in writing but most employees possess the right to receive a written statement not later than two months after entering employment including (see ERA 1996, s.1) : the names of the parties,
the dates when (continuous) employment commenced,
the particulars of remuneration, hours and holidays,
the job title or description, and
the place of work.
But the statement is not a contract itself (case law)
Unlike other countries, collective agreements in the UK are presumed not to be legally binding (TULR(C)A 1992, s. 179) but….. the collective agreement provides a set of substantive rules, relating to wages, hours, holidays etc., which regulate the individual contract of employment (through incorporation) Implied Terms: Employer’s Duties
There are the following implied duties on the part of the employer: To pay wages
To provide work
To exercise care
Implied Terms: An Employee’s Duties
To obey reasonable orders.
To exercise reasonable care and competence.
To maintain fidelity
Not to compete
Not to misuse confidential information
Not to impede the employer’s business
The duty to account.
Custom and Practice as a Source of Contractual Terms:
When loose understandings at work attain more acceptance and legitimacy they may be termed custom and practice rules Management or workers may unwittingly allow a one-off concession to grow into established expextations For custom to have a legal effect it must be‘reasonable, certain and notorious’ . Statutory Implied Terms as a Source of the Contract:
Equal Pay Act 1970
1. Requirement of equal treatment for men and women in same employment(1) If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include (directly or by reference to a collective agreement or otherwise) an equality clause they shall be deemed to include one. National Minimum Wage Act 1998
1. Workers to be paid at least the minimum wage (1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage. Features of the...
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