Employment Law RESIT Coursework Instructions

This report covers the express and implied terms of the employment contract, their application and drafting of misconduct clause. It also explains the relevant employers implied terms of employment and how they can accommodate the relevant implied terms of employment in advance to avoid any potential problems arising at a later date.

Employment Law
RESIT Coursework
Instruction

Table of Contents
INTRODUCTION ..........................................................................................................................3
MAIN BODY ..................................................................................................................................3
1. Explain and apply the relevant express terms of employment................................................3
2. Explain and apply the relevant employers implied terms of employment. ............................4
3. Why do the employers implied terms of employment exist ..................................................4
4. How can they accommodate the relevant implied terms of employment in advance to avoid
any potential problems arising at a later date .............................................................................5
5. In giving this advice you should write a brief which covers each of the points above citing
legislation and case law in support where relevant.....................................................................5
6. Draft a gross misconduct clause that will protect the employers interest and cover the
conduct that Brightman and Co should identify as acts of gross misconduct. ...........................6
CONCLUSION ...............................................................................................................................7
REFERENCES................................................................................................................................8

INTRODUCTION
The employment law can be referred to as the set of legislations which mediates
relationship between the workers, trade unions, employing entities and even the government. The
people who works in the companies based in UK are benefited with the advantages of minimum
charter of the employment rights that are found in many regulations, acts, equity and common
law. It serves as the regulator between the employee and business. While adhering to the
legislations, it is aimed to ensure that each of the staff and employees of the companies are fair in
every aspect of the workplace and during dismissal or hiring process. It tackles the issues of
discrimination and promote equality at workplace1. This report will cover the express and
implied terms of the employment contract, their application and drafting of misconduct clause.
MAIN BODY
1. Explain and apply the relevant express terms of employment.
The employment contract can be referred to as the legal relationship between the
employee and employer. It is made up of the specific terms which are agreed in writing, known
as express terms. Then is statutory terns and at last the implied terms.
The express terms are such which are specifically mentioned or may be agreed by parties.
These include the wages of the employee, working hours, holidays to which an employee is
entitled and many others. These express terms are required to be explicitly stated in the contract
in written manner. As Brightman & Co is planning to draft the terms and conditions of the
employment, it must enumerate in each of the contract of employment the terms relating to the
following-
 The annual or monthly wages to the employee which must also include the bonus or
overtime pay.
 The number of working hours of employee, including the overtime hours.
 The rest break to which it is entitled on daily basis.
 The number of holidays to which the employee is entitled.
 Redundancy pay
 Sick pay
1 'Rebooting EU Employment Law' (2018) 3 European Employment Law Cases

 The time period of notice to the employee in case it is being dismissed2.
2. Explain and apply the relevant employers implied terms of employment.
When there is absence of the express terms, there are different implied terms which
means that even though it is not mentioned or written down in the employment contract, yet they
are required to be followed. The employer of Brightman & Co must make sure that these
imp0lied terms are communicated to all and the employer must fulfil its duties which are the part
of implied terms.
 The employer should provide the safe working environment to every employee which is a
part of its organization.
 The employees are required to follow the lawful and reasonable orders of the employer.
 The employee as well as employer must maintain the relationship of mutual confidence
and trust.
 The employee is duty bound to obey the reasonable instructions provided by the
employer.
 Employer must make sure that the mental and physical health of the employee is taken
care of at the time of employment. It also involves the duty to provide the reasonable and
safe environment of working3.
3. Why do the employers implied terms of employment exist
The contract of employment sometimes require the contractual terms which is to be
implied in them in order to make its workable and also fill the gaps wherein nothing is agreed
among the employee and employer. These terms are existed in the employment contract as it
imposes duty on the employer to take care of its employees. The implied terms are the duties of
both employer and employee which are required to be followed by them irrespective of whether
they are enumerated in the contract or not. These exist in not make the employer duty obliged
towards the terms in order to protect the rights of the employees from exploitation. In order to
make the term binding, it must pass one of its two test which includes firstly efficacy test which
considers as to whether contract would sufficiently work without any term is being implied.
Second is officious bystander test which considers whether the third party ( bystander) when
2 SHRUBSALL V, 'INDIVIDUAL EMPLOYMENT LAW: Continuity Of Employment And Redundancy
Rebates' (2017) 8 Industrial Law Journal
3 Phillips G, and Scott K,
Employment Law (2018)

asked about its opinion would assume that term is involved in the contract of employment. Apart
from this, there are customs and practices which are considered in order to make the implied
term and at last the statutory law which are within business.
4. How can they accommodate the relevant implied terms of employment in advance to avoid
any potential problems arising at a later date
It is essential for the employer to make sure that it complies with the implied terms of the
employment so that it does not face any problem in the future. These implied terms can be
enumerated as the express terms in the employment contract or may be provided expressly in the
organizational policy so that the employer can be duty bound to make adherence to the implied
terms. The court have analysed ther domestics as well as international jurisprudence on a concept
of the implied terms and included the conditions which must be satisfied in order to imply the
terms in contract and accommodate in the working so that potential problems are prevented
which may arise in future. These include the following-
 The terms must be equitable and reasonable to imply it.
 They must provide business efficacy to contract so that the term is not implied of a
contract is effective without it.
 The terms must be so much obvious that it is followed without saying.
 It should be capable of the clear expression.
 It should not contradict any of the express terms of contract4.
5. In giving this advice you should write a brief which covers each of the points above citing
legislation and case law in support where relevant.
The employment law includes the rights of the workforce so that they can get the
protection from exploitation. It is important for the employer to make adherence to these laws by
including the express and implied terms in the contract so that there can be compliance with law.
For instance, the express term of monthly wages is covered under the
National Minimum
Wages Act which provides the minimum amount of wages to which an individual is entitled as
per their age. Then is
Working Time Regulation which is concerned with maximum working
hours of employees which is 48 hours in a week. Then this regulation also discuses about
holidays to which the employee is entitled. Then for implied terms, there is
Health and Safety at
4 Grebenyuk V, 'EMPLOYMENT LAW CONTRACT AS A SPECIAL TYPE OF EMPLOYMENT
CONTRACT' (2020) 1 Law and public administration

Work Act which imposes duty on employer to provide safe working environment to its
workforce. Then is
Equality Act which is concerned with maintaining fairness and equality at the
workplace among all employees by preventing discrimination in company. Hence, there are
many other legislations also which covers different terms of the employment contract5.
6. Draft a gross misconduct clause that will protect the employers interest and cover the conduct
that Brightman and Co should identify as acts of gross misconduct.
An employee can be dismissed from its job if it is incapable of doing its job as per the
required standard ir is capable but is unwilling to do it in proper manner or have committed any
misconduct. Gross misconduct is when an employee does any act such as physical violence,
theft, serious insubordination or gross negligence. For the gross misconduct, the employer can
dismiss the employee on immediate manner but must follow the fair procedure in doing so.
Some examples of the gross misconduct on the basis of which Brightman & Co can
identify it are as follows-
 Committing fraud, dishonesty and theft such as stealing petty cash, fraudulently claiming
the expenses, stealing from the colleagues, taking the office supplies for the personal use
outside of the work and many others.
 Offensive behaviour or physical violence which involves acts like bullying, harassment,
fighting, rape, physical assault, etc.
 Gross negligence and also breaking of the rules relating to health and safety such as not
wearing required protection and safety equipment, removing the safeguards from the
equipments, etc.6
Gross misconduct clause:
If an executive is found in engaging in the conduct which constitutes gross misconduct or
negligence in the performance of its duties under the agreement and which is materially
detrimental to company, is incurable either or if it is curable, the Executive fails to cure the gross
negligence or misconduct within 30 days from receipt of notice, then the Executive shall be
dismissed from the job.
5 'Workmen's Compensation: Course Of Employment: "Arising Out Of Employment"' (2017) 16 Michigan
Law Review
6 BOWERS J, 'EMPLOYMENT PROTECTION: Associated Employers And Continuity Of Employment'
(2019) 11 Industrial Law Journal

CONCLUSION
It is concluded from this report that employment legislation is a set of rights and duties of
employees and employers so that the rights of the workforce is protection from any kind of
exploitation. Every worker is entitle to the contract of employment when beginning its job which
consist of express and implied terms. Gross misconduct is an act which consist of an act that is
detrimental to the job which includes theft, physical violence, harassment, etc. The employer
have the right to take immediate action for the gross misconduct, subject to the condition that it
follows the fair procedure.

REFERENCES
Books and Journals
'Rebooting EU Employment Law' (2018) 3 European Employment Law Cases
'Workmen's Compensation: Course Of Employment: "Arising Out Of Employment"' (2017) 16
Michigan Law Review
BOWERS J, 'EMPLOYMENT PROTECTION: Associated Employers And Continuity Of
Employment' (2019) 11 Industrial Law Journal
Grebenyuk V, 'EMPLOYMENT LAW CONTRACT AS A SPECIAL TYPE OF
EMPLOYMENT CONTRACT' (2020) 1 Law and public administration
Phillips G, and Scott K,
Employment Law (2018)
SHRUBSALL V, 'INDIVIDUAL EMPLOYMENT LAW: Continuity Of Employment And
Redundancy Rebates' (2017) 8 Industrial Law Journal