LEGAL PRACTICE COURSE
Employment Law
Workshop 3
Topic(s):
Implied Terms
Breach of Contract
Constructive Dismissal
Learning Outcomes:
By the end of this session you will be able to:
Identify and understand common implied terms in a contract of employment
Advise on the consequences of breaching express and implied terms
Identify and advise on a constructive dismissal
Understand and advise on the remedies available for breach of contract
Session Activities:
A consideration of implied terms
Advising an employee about the consequences of an employer’s breach of contract
Advising an employee about the consequences of an employee’s breach of contract
Materials Attached:
Pre-session task: memorandum dealing with a request for advice on an employer’s
conduct
In session task: memorandum requesting advice on compliance with contract terms
Preparation for Session:
Review LG 1 and 2
Reading: Articles on Practical Law entitled ‘Implied terms in employment contracts’,
‘Garden leave’ and ‘Restrictive covenants in employment contracts’
Provide answers to the pre-session task for discussion
Post-Session:
Consolidate your learning in the session
docs_573756339.docx 1/11 © City, University of London 2019
, Implied terms
-The below is not an exhaustive list
-Arose from a long series of case law
Employer Duties
-Pay→ usually express term→ pay reasonable amount (normally implied term not relied on)
-Provide work→ mutuality of obligations→ obligation to give work
- Indemnify employee
- Health & Safety → also covered in statute (but supplemented as implied term too)
-Trust & Confidence (MTC)→ very important, referred to as employers duty (but is mutual
too)→ e.g. bullying, manager undermining and humiliating colleagues= breach of MTC→ as
with any term, some may be concerned fundamental breaches (and some may not)→ so to show
constructive dismissal, employee must show breach of a fundamental term (which some MTC
are and some are not)→ to be a repudiatory breach→ MTC very crucial (lots of case law on
MTC)
-References→ no obligation to provide a reference, but if does, must provide a fair and
accurate reference, so many employers due to this just give job title and dates of employment
so they do not have negligent misstatement claims against them (tortious)
Employee Duties
- Personal service→ crucial (mutuality of obligations), so provide work themselves and do
not delegate to anyone else (unless they are allowed e.g. a manager will delegate)
-Obey→ reasonable orders e.g. Training contracts and asked to clean toilets= reasonable to
say no→ as not reasonable order for trainee solicitor to clean→ so if reasonable need to do it
-Fidelity→ good faith→ flip side to MTC→ do not do anything that will damage employers
business e.g. stealing information or setting up competition or posting bad things about
employer→ really key to employer relationship
-Confidentiality→ one term of employment contract even if there is not an express term in
the contract, it will continue after the employment has terminated (every other term will
not)→ not as wide for post-termination
-Trust & Confidence
-Care & Skill→ do work diligently and properly
docs_573756339.docx 2/11 © City, University of London 2019
Employment Law
Workshop 3
Topic(s):
Implied Terms
Breach of Contract
Constructive Dismissal
Learning Outcomes:
By the end of this session you will be able to:
Identify and understand common implied terms in a contract of employment
Advise on the consequences of breaching express and implied terms
Identify and advise on a constructive dismissal
Understand and advise on the remedies available for breach of contract
Session Activities:
A consideration of implied terms
Advising an employee about the consequences of an employer’s breach of contract
Advising an employee about the consequences of an employee’s breach of contract
Materials Attached:
Pre-session task: memorandum dealing with a request for advice on an employer’s
conduct
In session task: memorandum requesting advice on compliance with contract terms
Preparation for Session:
Review LG 1 and 2
Reading: Articles on Practical Law entitled ‘Implied terms in employment contracts’,
‘Garden leave’ and ‘Restrictive covenants in employment contracts’
Provide answers to the pre-session task for discussion
Post-Session:
Consolidate your learning in the session
docs_573756339.docx 1/11 © City, University of London 2019
, Implied terms
-The below is not an exhaustive list
-Arose from a long series of case law
Employer Duties
-Pay→ usually express term→ pay reasonable amount (normally implied term not relied on)
-Provide work→ mutuality of obligations→ obligation to give work
- Indemnify employee
- Health & Safety → also covered in statute (but supplemented as implied term too)
-Trust & Confidence (MTC)→ very important, referred to as employers duty (but is mutual
too)→ e.g. bullying, manager undermining and humiliating colleagues= breach of MTC→ as
with any term, some may be concerned fundamental breaches (and some may not)→ so to show
constructive dismissal, employee must show breach of a fundamental term (which some MTC
are and some are not)→ to be a repudiatory breach→ MTC very crucial (lots of case law on
MTC)
-References→ no obligation to provide a reference, but if does, must provide a fair and
accurate reference, so many employers due to this just give job title and dates of employment
so they do not have negligent misstatement claims against them (tortious)
Employee Duties
- Personal service→ crucial (mutuality of obligations), so provide work themselves and do
not delegate to anyone else (unless they are allowed e.g. a manager will delegate)
-Obey→ reasonable orders e.g. Training contracts and asked to clean toilets= reasonable to
say no→ as not reasonable order for trainee solicitor to clean→ so if reasonable need to do it
-Fidelity→ good faith→ flip side to MTC→ do not do anything that will damage employers
business e.g. stealing information or setting up competition or posting bad things about
employer→ really key to employer relationship
-Confidentiality→ one term of employment contract even if there is not an express term in
the contract, it will continue after the employment has terminated (every other term will
not)→ not as wide for post-termination
-Trust & Confidence
-Care & Skill→ do work diligently and properly
docs_573756339.docx 2/11 © City, University of London 2019
