An employment contract is made up of different types of terms. Usually these terms will be explicitly agreed by employers and workers. But the employment contract can also include terms that:
- haven't been written down or explicitly agreed – but can be implied into the contract in different ways
- come from the law
Implied terms
Some terms can be 'implied' in the employment contract, even if they have not been written down.
Implied terms often fill in gaps where things have not been written down or agreed verbally. But they are still part of the contract.
This could be because they:
- are necessary to make the contract work – for example, a delivery driver needing a valid driving license
- were too obvious to write down – for example, employees not stealing from their employer
- are clear in the conduct of the employer and worker – for example, always being paid on a certain day of the week
- have become part of the contract through custom and practice
An implied term cannot contradict a written term.
In general, it's best to write down anything that you intend to be part of the employment contract. This helps to avoid confusion. It will ensure that everyone understands their rights and responsibilities.
Imposed terms
Some terms are part of the employment contract because they're required by law. These are known as 'imposed terms'.
Imposed terms can come from:
- acts of law
- judge-made law – decisions made by judges in higher-level courts, like the Employment Appeal Tribunal or the Court of Appeal
Imposed terms that come from acts of law are sometimes known as 'statutory terms'. For example, that workers should be paid at least the minimum wage.
Employers cannot include anything in a contract that contradicts an imposed term. This is even if they write it down or discuss it directly with the worker.
Employer and worker duties
There are certain duties that are always part of an employment contract. These are:
- duty of care
- duty of trust and confidence
- duty of fidelity
These duties are a type of imposed term because they come from the law. But they are generally known as 'implied duties'.