Contract of employment and Employment relationship.doc

Note it has been argued that while the courts are

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Note: it has been argued that while the courts are reluctant to imply terms into a contract, they are more prepared to imply terms in order to control the employer’s express powers, under the contract (Implied terms as a control mechanism). See also: United Bank v Akhtar (1989) IRLR 507- The Bank in the contract of employment had included an express mobility clause giving it the right to move employees to any branch in the UK and discretion as to whether or not it would give relocation allowances. The applicant was a bank clerk in the lowest grade, was given less than a week notice to move permanently from the Leeds branch to the Birmingham branch. His request for a 3 months notice in order to facilitate his moving (i.e. selling his house and taking care of his sick wife) were rejected. The Tribunal held that although an implied term could not 21
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contradict an express term that implied term could control its exercise. There was an implied term that the bank would give reasonable notice so that it would not be impossible for the employee to perform his contractual obligation. 22
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b) Business Efficacy – these are terms which are necessary in the business sense to give efficacy to the contract. These are default rules that are normal in business contracts. For example duties by the employer of care and fidelity, duty of confidentiality. c) Custom and practice – what exactly does this mean? Whose custom and practice? Is it a connotation of managerial prerogative so that worker acquiescence means that they are bound or is it or is it that workers do things their way without objection? To be a legally recognized by the courts as an implied term by custom, the custom must be reasonable, certain and notorious. Also policies of the organization which have been brought to the attention of the employees and which has been followed without exception for a substantial period of time. For a custom to be considered part of the contract it must pass the test similar to customary law i.e. that it must be reasonable, it must be well known and it must have existed for a long time. The potential for the custom and practice test to be one sided in favour of the employee was recognized in the case of Duke v Reliance Systems (1982) IRLR 347 where Browne – Wilkinson, J stated that: “A policy adopted by management unilaterally cannot become a term of the employee’s contract on the grounds that it is an established custom and practice unless it is at least shown that the policy had 23
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been drawn to the attention of the employee or has been followed without exception for a substantial period.” Other implied terms: a) Cooperation and mutual trust and confidence – see: Ruth Gathoni Ngotho – Kariuki v Presbyterian Church of Kenya & Presbyterian Foundation (Industrial Cause No. 509 of 2010) See also: Malik v BCCI [1997] 3 All ER 1 – Per Lord Steyn “…the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” This implied term is especially relevant for professionals. They may be
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  • Winter '12
  • kariuki
  • Tribunal, Simon Deakin, Ms Sarkar

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