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"It would be hard to over emphasise either the contribution made by implied terms in building up a contract of employment or the flexibility and power this operation gives to the judges whose job it is to construe the contract" - Discuss.

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Introduction

"It would be hard to over emphasise either the contribution made by implied terms in building up a contract of employment or the flexibility and power this operation gives to the judges whose job it is to construe the contract" - Discuss. Employment law is a very complex subject and greatly dynamic this is because law is always changing. More and more rules and regulations are brought about, more terms are being introduced as well this is because of flexibility of the judges. This occurs during a tribunal or employment law related case. When an offer of employment is been accepted unconditionally a contract of employment comes into play the terms of a contract can be written or oral as well as implied. Even though the written statement that exists is not the contract, this can still be used as evidence later on when a dispute occurs between the employer and employee. The terms can be found in a lot of places including job adverts, letters to the employee and staff handbooks. A written contract must be written up when the employee is at the same place of work for a month or longer, this will include the term and conditions of the employment. To change the existing contract of employment the employer must get consent either written oral or implied though a collective agreement this is an agreement between the employer and employee or their representative, it is no more than a "gentleman's agreement". ...read more.

Middle

No employers would employ him, as if he was part of the illegal operation. This was known as 'the kiss of death', as he was unable to find any employment. Therefore he took action against the bank. Courts decided employer had duty of care to conduct the business in a legally correct manner, since the business did not do so Malik was tainted by association, the courts agreed, Malik had been stigmatised by the bank and was awarded stigma damages because of the breech of implied term of mutual trust and confidence. In some circumstances under implied term to be used as a basis for a claim by the employee who has not been badly treated but treated less favourably by other employees in the case of Transco plc v O'Brien, the employee was sourced through an agency basis he was then made permanent, all full time offered new terms with the new company, but not O'Brien, court decided he was not treated badly but treated less favourable which was a breech of implied duty of mutual trust and confidence. Implied terms can be implied by conduct in the case Lotus Cars v Sutcliffe 1982 this was regarding redundancy pay and the number of hours worked per week. Sutcliffe became redundant, there pay was calculated by the number of hours meant to work which was 40 per week in the original contract, but in the staff handbook it referred to working a 45 hour week where the extra hours were normal extra time. ...read more.

Conclusion

Ltd; this case regarded dress codes in the workplace. Boychuk was an accounts clerk, she sometimes came into contact with customers and she always wore bright big badges referring to lesbianism, they included 'gay power'. Her employers ordered her to remove these badges or she will get dismissed, she refused and therefore dismissed. She claimed for unfair dismissal, courts looked at all the circumstances and decided it was fair. Since this case there have been discrimination laws, sex, race, gender, and disability and gender laws reassigned. Therefore of this case was decided today it would have been a very different outcome. In the implied term duty to give faithful service, employer is under no duty to disclose his own misconducts or any wrong doings but under a duty to disclose the misconduct of his/her subordinates, even if by doing so they criminate them selves. In conclusion implied terms are of customary practice, we see implied terms can be made because of the power of the judges' decisions and also the flexibility of the judges. This can be seen in the case of Malik explained in detail above. Since employment law is forever changing some of the cases above would have different outcomes if they went to court today. I feel as if the flexibility and power of the judge's makes less contribution to building up a contract of employment than implied terms, this is because implied terms are more frequently cited against employers. Word Count: 2,492 ?? ?? ?? ?? Law of the workplace assessment Louise Marshall 03001693 ...read more.

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