The Employment Contract Legal Principles,

The Employment Contract: Legal Principles, Drafting, and Interpretation provides a detailed analysis of the content of the employment contract. It explains the way in which the general principles of contract law operate in respect of the employment contract, discusses the significance ofimplied terms in interpreting the employment contract, and includes guidance on the drafting of effective employment contracts. Offering a balance between a reliable guide to the current law and an analysis of how the employment contract might develop, the book will be of equal interest to thepractitioner and the academic.

Dr. Douglas Brodie is currently Reader in Law at Edinburgh University, and his main research areas are in the area of labour law, including employment contracts, collective agreements, strike law, and the history of labour law in the United Kingdom. Dr Brodie also works as a consultant to two leading Edinburgh law firms: Mackay Simon and Simpson and Marwick.

Table of Cases

xv

Table of Statutory Instruments

xxv

Table of Statutes

xxvii

Identifying the Contract of Employment

Devising a Legal Test

3

(3)

The Modern Approach: In Business On Your Own Account?

6

(6)

Mutuality of obligation

10

(2)

The Intention of the Parties

12

(5)

Difficult Cases

17

(10)

Casual workers

17

(2)

Agency workers

19

(8)

Conclusions

27

Continuity of Employment: The Common Law

Continuity and Casual Workers: The Mutuality of Obligation Barrier

2

(4)

Continuity through evolution

3

(1)

Umbrella contracts

4

(2)

Contracting Out

6

(1)

Conclusion

7

Formation of the Contract

Offers of Employment

1

(2)

The Role of Writing

3

(7)

The written statement

3

(4)

Variation

7

(1)

Exceptions

8

(1)

Remedies

9

(1)

References

10

(6)

Occupational Health

16

(2)

Illegality

18

(1)

Illegality as to Performance

19

Implied Terms

Place of Work and Mobility

2

(3)

Notice

5

(2)

Lawful and Reasonable Orders

7

(4)

The Right to Work

11

(4)

Reasonable Care

15

Mutual Trust and Confidence

Application of the Term

5

(2)

Positive Obligation

7

(6)

Provision of information

9

(3)

Change of practice

12

(1)

Course of Conduct

13

(3)

Motive

16

(1)

Contracting Out

17

(3)

Relationship to Other Implied Terms

20

The Right to Wages

Partial Performance

4

(4)

Acceptance of partial performance

7

(1)

Payment During Involuntary Absence

8

(11)

Illness

8

(4)

Lay-off

12

(4)

Suspension

16

(3)

Relationship Between Work and Wages

19

The Duty of Fidelity

Competing with the Employer

3

(4)

Disclosing Misconduct

7

(3)

Confidential Information

10

(3)

Trade Secrets

13

(3)

The Future of the Term

16

Restrictive Covenants

Introduction

1

(2)

Lack of Enforceability: The Rule in General Billposting

3

(3)

Legitimate Interests

6

(5)

The Legitimate Extent of Protection

11

(6)

Consideration

17

(2)

Interpretation

19

(5)

Policy concerns

21

(3)

Severance

24

(2)

Conclusions

26

Appendix: Garden Leave

28

Custom and Practice

Industry or Trade Custom

1

(1)

Single-Employer Custom

2

Introduction

2

(2)

The modern approach: ascertaining the intention of the parties

4

Collective Agreements and Employment Contracts

Introduction: The Legal Status of Collective Agreements

1

(1)

Incorporation of Collectively Agreed Terms

2

(9)

Incorporation by custom

3

(2)

Incorporation by implication

5

(4)

Third-party rights

9

(1)

Agency

10

(1)

Appropriateness for Incorporation

11

(6)

`No-strike' clauses and statutory intervention

15

(2)

What is Incorporated?

17

(1)

Translation

18

(1)

Concluding Remarks

19

Interpretation of Employment Contracts

Aids to Interpretation

2

(7)

The factual matrix

2

(4)

The understanding of the parties

6

(1)

Conduct of the parties subsequent to formation of the contract

7

(1)

Contra proferentem

8

(1)

Specific Issues

9

Discretionary clauses

9

(11)

Unilateral variation

20

(3)

Non-contractual language

23

(2)

Appendix: Income Protection Clauses

25

Analysis Applied: Drafting of Employment Contracts

Interaction Between Express and Implied Terms

2

(3)

The Sources of the Employment Contract

5

(3)

Entire Agreement Clauses

8

(1)

The Unfair Contract Terms Act 1977

9

(3)

Conclusions

12

Variation of the Employment Contract

Demarcation Lines

2

(1)

Dismissal and unilateral variation

2

(1)

The Effect of Unilateral Variation

3

(7)

Affirmation of contract

3

(2)

Unilateral variation and implicit acceptance

5

(5)

Variation of the Contract: Other Issues

10

(221)

An obligation to adapt

10

(1)

Consideration

11

(1)

Notice of termination

12

(1)

Variation through evolution

13

(2)

Statutory right to request contract variation

15

(216)

Index

231

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The Employment Contract Legal Principles, Drafting, and Interpretation

Summary

Author Biography

Table of Contents

Supplemental Materials