All contracts of employment contain implied terms. The need for this arises out of common - and more or less inevitable - failures of the parties to discuss and agree every aspect of a working relationship, about which a dispute may arise. This failure can be attributed to the fact that employment relationships are frequently open-ended and last over a considerable period which is not determined at their start.
Employers’ implied duties
The list of an employer’s implied duties may be very long. Some will be specific to a particular contract and others are common to all. Common implied terms include:-
Employees’ implied duties
There are implied contractual obligations for employees too in any contract of employment, including obligations:-
How are terms implied into contracts?
The above rights and obligations are implied into all contracts of employment because the law recognises that they are necessary in order for the employment relationship to work. Other implied rights or obligations may arise in a particular working relationship, where two tests are met:-
For example, if redundant employees have, consistently and over a reasonably long period of time, been given redundancy pay in excess of the statutory minimum, this may have established a ‘right’ to enhanced redundancy pay for redundant employees in the future.
“Custom and practice” is often misunderstood. It does not mean that if the parties have behaved in a certain way over a long period of time that one party has a right to insist that that behaviour continue because it has now become a contractual term. The starting point will always be the express terms that have been agreed.
Example: Mary has a written contract which says that her hours of work will vary and that there is no guarantee of minimum hours. She has however worked at least 10 hours a week for the last 18 months. The fact that she has worked 10 hours does not mean that it has, by custom and practice, become an implied contractual term. There is an express term in the contract which says the contrary. She will have to show that the parties have agreed to vary that term in order to argue that she now has a right to work 10 hours a week.