Children and young persons
Children and working time
Workers who must receive a written agreement
Terms and conditions of employment
Duty to pay wages
Duty to provide a grievance procedure
Your implied duties
Duty to adapt
Duty of fidelity or good faith
Illegality and the contract
Written statement of employment particulars
The offer and your acceptance are the main ways to establish if an agreement was reached. The essential elements of this agreement are:
The terms are established when the offer is made.
The person who makes the offer must have the authority to do so.
The offer must be unambiguous with the key terms clearly identifiable.
The offer can be made conditionally.
If the offer is conditional, the condition should be met.
There must be a time limit to accept the offer.
A positive act is required.
Your acceptance must be within a reasonable time.
Your acceptance must be unconditional.
Both you and your employer must get something from the agreement.
You promise to carry out the work, and your employer promises to pay you.
Any promises made before you start work are legally binding.
You and your employer must intend to create legal relations.
You will not be able to enforce the contract unless there are legal relations.
There is no legal requirement for you to accept the offer formally, but you must receive a written statement of employment particulars within two months of starting work. The statement itself is not a contract, it is the 'particulars' of your employment, for example, your place of work, hours of work etc.
Carlill v Carbolic Smoke Ball Co  1 QB 256 CA - There must be an offer, consideration, acceptance and an intention to create legal relations.
O'Laoire v Jackel International Ltd (No 2)  IRLR 170 CA and Puntis v Governing Body of Isambard Brunel Junior School EAT/1001/95 - An assurance that a job will be offered is too vague to form a contract and is not a job offer.
R v Lord Chancellor's Department ex p Nangle  1 All ER 897 HC - There must be an intention to create legal relations.
If a conditional offer is withdrawn before you start work because one or more of those conditions were not met, it is unlikely that you will be able to claim any damages. However, you may be able to claim damages if the offer is withdrawn after you have started work.If the contract was for a certain period of time this is likely to be viewed as a "collateral" contract. In this case you may be able to claim damages on the basis of the collateral contract for wages that would have been earned during the period.
Gill & Others v Cape Contracts  IRLR 499 HC - Damages can be claimed if a collateral contract is withdrawn.
Wishart v National Association of Citizens Advice Bureaux  IRLR 393 CA - An offer of employment can be conditional and subject to receiving a satisfactory reference.
The following legislation deals with the employment of children and young persons:
Children and Young Persons Act 1993 Sec 18
Children and Young Persons Act 1933 (as amended)
Children and Young Persons (Scotland) Act 1937
Children (Protection at Work) Regulations 1998
Note: This is not the only legislation.
The hours and types of work that a child can carry out are restricted. An employer must have a permit from the local Education Authority to employ a child. An Education Authority can impose regulations and bye-laws. The Education Authority can also ask for information regarding the child's employment, it can impose restrictions and even prohibit employment. With one exception, a child under 14 cannot be employed. In particular, a child of any age cannot work in an industrial undertaking. A child's work should not involve carrying, lifting, or moving anything that is heavy and will harm or injure the child.
The exception is when a child is 13 years old, and occasionally carries out light agricultural or horticultural work, provided the child is employed by a parent or guardian. This work must not be detrimental to the child's health and safety or development and it must not affect the child's attendance at school, or participation in any approved work experience.
Approved work experience is authorised by the Education Authority. A child can take part in work experience as part of the child's education in the last year of compulsory schooling.
A child may take part in a public performance if the employer has a license from the Education Authority. A license is also required from the Education Authority before a child can take part in any sport or work as a model.
The hours that a child can work are restricted as follows:
During school hours on any day when the child should be at school.
Any day before 7.00 am and after 7.00 pm.
No more than two hours on any school day, or more than one hour before school.
No more than two hours on any Sunday.
On non-school days, except on a Sunday, a child from 13 to 14 years old may work for up to five hours. The total hours worked cannot exceed 25 hours in any week.
On non-school days, except on a Sunday, a child from 15 to 16 years old who is under school leaving age, may work for up to eight hours. The total hours worked cannot exceed 35 hours in any week.
A young person cannot work more than eight hours per day, and no more than 40 hours per week. This applies, even if the young person is employed by more than one employer. Unlike adult workers, there are no provisions for averaging working hours over several weeks. A young person cannot opt out of these provisions in the same way that an adult can.There are limited exceptions in special circumstances, for example; where work needs to be done to maintain continuity of production or service, or to respond to an upsurge in demand. However, those exceptions will only apply when there is not an adult worker who could carry out the work and the young person's education and training is not adversely affected.
A young person cannot work at night between 10.00 pm and 6.00 am, or if specified in the young person's contract, between 11.00 pm and 7.00 am.Some employers are exempt from night working restrictions, for example; in agriculture, catering, bakeries, fisheries, hospitals, hotels, newspapers, postal services and retail trading. In these cases, a young person cannot work between midnight and 4.00 am. If a young person is asked to work at night, the young person must be supervised by an adult worker if this is necessary for the young person's protection.
A young person is also entitled to:
Two rest days per week.
A daily rest break of 12 consecutive hours, for example; the hours between finishing work one day and starting work the next day.
A rest break of at least 30 minutes if the working day lasts longer than four and a half hours.
A free health assessment before any night work is carried out, and free health checks at regular intervals thereafter.
Ashby v Addison & Another (T/a Brayton News)  All ER [D] 98 [Jan] EAT - A minor is not a "worker" under the provisions of the Working Time Regulations 1998.
Chaplin v Leslie Frewin [Publishers] Ltd  2 WLR 40 CA and Clements v London & North Western Railway Co  2 QB 482 HL - A minor will be bound to a contract for education, employment or training if the contract is substantially for the minor's benefit.
De Francesco v Barnum  45 Ch D 430 CA - A minor will not be bound by a contract that is not in the minor's best interests.
The Health and Safety Executive have published guidance for the employment of young persons, click here for a copy of the guidance.With some exceptions, young persons have the same employment rights as adult workers. The exceptions include minimum rates of pay under the National Minimum Wage Act 1998. However, discrimination legislation applies equally to young workers, and the right to make a discrimination claim is available without any age restrictions.
If you are a minor, the agreement can be signed by a parent or guardian. However, on becoming an adult you can reject or terminate the agreement.The agreement can be with your employer, or an individual within your employer's organisation. If this individual leaves the organisation, this will be a breach. In practice, you will normally be placed with another individual. If the business transfers to another employer and your training ends, this will be a breach.
The essential elements of the agreement are the payment of wages for the duration of the apprenticeship, the training and trade skills that you learn, and your status when the training is completed which provides you with a good start in the job market. If there is a breach, it is likely that you will be entitled to wages and any other benefits up to the date when the agreement would have ended. It is also likely that damages will extend beyond this period for a failure to train and loss of future work prospects.It is very difficult to dismiss an apprentice in the same way that an ordinary employee may be dismissed, for example: insubordination or poor conduct. This is because of the agreement to train. This does not mean that you cannot be dismissed. This could happen if there are grounds for grave misconduct or negligence, or a refusal or failure to train or learn the trade.
In addition, you cannot normally be made redundant, this could also be a breach under the agreement. Although you could be made redundant if the business ceases trading or closes, or if there is a significant change in the nature of the business.
Dunk v George Waller & Son  All ER 630 CA - If an apprenticeship is terminated early there will be grounds for damages for loss of future work prospects and loss of earnings for the remaining period of the apprenticeship.Wallace v C A Roofing Services Ltd  IRLR 435 HC - It might be possible for an apprentice to be made redundant, provided there is a closure, or a fundamental change in the character of an organisation.
This type of agreement is a contract of apprenticeship because the essential elements of a traditional apprenticeship are present. This means that you will have the same rights as a traditional apprentice.
Flett v Matheson  IRLR 277 CA - The essential elements of an apprenticeship need to be identified before a contract of apprenticeship is established as in Dunk v George Waller & Son above.
Whiteley v Marton Electrical Ltd  IRLR 197 EAT - Damages for "traditional" and "modern" apprenticeships are similar.
Contractual: Terms and conditions which are agreed between you and your employer, or your trade union or employee representatives.
Statutory: Legal rights enacted by parliament which are implied into your contract.
Contractual terms and conditions cannot normally be changed without your consent. If your terms and conditions are changed or varied without your consent, this is likely to be a breach. You may have grounds for a breach of contract claim or constructive dismissal if the breach is fundamental. If you are considering a constructive dismissal claim you should bear in mind that you will not only need to prove that you were constructively dismissed, you will also need to prove that the dismissal was unfair.
Startutory conditions that have been implied into your contract, for example national minimium wage or working time are mimimum rights. You may agree to vary those rights, but only if this variation results in improved rights and does not reduce or restrict those rights.
Gibbons v Associated British Ports  IRLR 376 HC - An employer cannot unilaterally vary a contract.
Hooper v British Railways Board  IRLR 517 CA - A breach of contract does not necessarily mean a dismissal is unfair.
Verbal agreement: This is anything which has been verbally agreed and can cover your duties and responsibilities, holiday entitlement, hours, overtime, pay etc.
Implied terms: Generally, this is anything that is needed to make the contract workable, such as implied duties to ensure your health and safety, maintaining trust and confidence etc.
You also have implied duties to your employer such as the duty to co-operate.
Conduct: This covers anything that you are normally expected to do as part of your job which is implied into your contract as common practice.
Written terms: This is anything that has been written down. For example; an advert if the job was advertised in a newspaper or at the Job Centre, a job offer letter, a written contract, or a collective agreement which was negotiated by a trade union or employee representatives. It can also include an employee handbook or any other documents which you may be referred to and which are easily accessible.
Statutory provisions, rights and protection: Terms can be implied into your contract by law or statute. This could be anti-discrimination laws, the right to receive a redundancy payment, national minimum wage, working time etc.
Contractual terms and conditions are usually better than statutory rights. Statutory rights are minimal rights, for example; your terms and conditions may allow you to be paid more than the national minimum wage, or you may be entitled to company sick pay rather than statutory sick pay.Therefore, your contract may consist of a number of terms which are included through verbal agreement, or implied by statute, or conduct through common practice, as well as express or written terms.
The Unfair Contract Terms Act 1977 can apply to contracts of employment.
Johnstone v Bloomsbury Health Authority  QB 333 - Almost any term can become express if it is agreed by the parties.
Sagar v H Ridehalgh & son Ltd  1 Ch 310 - For a term to be incorporated by custom and practice, it must be "notorious, certain and reasonable".
Tayside Regional Council v McIntosh  IRLR 272 EAT - A job advert can be used to interpret express terms.
You are entitled to benefit from an implied term even although the term is not in writing. Your employer cannot withdraw the benefit, or argue that you are not entitled to benefit from the term because there is nothing in writing.
Scally v Southern Board  ICR 77 - The House of Lords ruled that employees are entitled to derive a benefit even when they are only informed of the benefit.The following are implied terms or duties which are due to you from your employer:
Duty to pay wages.
Duty to exercise reasonable care.
Duty to provide a grievance procedure.
Duty of mutual trust and confidence.
Duty to pay wages
Unless you have expressly agreed in writing, your wages cannot be paid in kind, you must receive money. Although your wages can be paid in cash, there is no implied right for you to be paid cash. Your wages can also be paid by cheque, by credit transfer to your bank account etc.You are protected from any unauthorised deductions from your wages. However, your employer can make deductions if:
There is a statutory authority to do so, for example, tax, national insurance contributions, or when the deduction is ordered by a Court.
There is a provision in your contract to make the deduction, for example; pension contributions, savings, trade union dues etc.
You have expressly agreed in writing for the deduction to be made.
The deduction has been made due to an overpayment of wages.
There are special rules that apply to retail workers for cash shortages or stock deficiencies (see below).
If you have expressly agreed to a deduction, the agreement must be in writing and you must have signed and dated it before the need for a deduction arises. This means that your employer cannot ask you to sign an agreement after the need for a deduction has arisen, for example; staff breakages, damage to property etc. Neither can you be placed under pressure to sign such an agreement after the need has arisen.
Any overpayment of wages can only be deducted if there was an error or mistake in the calculation of your wages. The error has to be a mistake of fact, rather than a mistake of law. Even if the mistake was an error, your employer may not be permitted to make the deduction if you were led to believe that you were entitled to the overpayment and you acted on that believe (for example. you have spent the money).A deduction may be made from your wages if you have taken part in industrial action or a strike. You must be willing and able to carry out your work. If you are not, then your employer may deduct wages for hours that you have not worked.
Special rules apply that allow your employer to make deductions for cash shortages or stock deficiencies if you are a retail worker. However, certain conditions have to be met before the deductions can be made:
There must be a contractual agreement in place before the cash shortage or stock deficiency occurred. This is because you are protected from being placed under pressure to agree to deductions after the cash shortage or stock deficiency occurred.
The deductions, or the demand cannot be more than 10% of your gross weekly or monthly wages. If the amount demanded is greater than 10% of your gross wages, then deductions, which cannot be more than 10%, may be made until the overall amount has been paid.
If your employment comes to an end, the full amount may be deducted.
Generally, the deductions or the demand cannot be made if the cash shortage or stock deficiency occurred more than 12 months previously, and any deductions from your wages cannot continue for any more than 12 months after the cash shortage or stock deficiency occurred.
If your employer could reasonably have discovered the shortage or stock deficiency earlier, the 12 month period will run from when this should have been discovered.
Avon County Council v Howlett  IRLR 171 CA - An overpayment of wages cannot be reclaimed if the employee has been led to believe that the wages were his, and the employee acts on that belief and spends the wages.
Collier v Sunday Referee Publishing Co Ltd  2 KB 728 - As long as wages are paid, generally an employer does not need to provide work. The exceptions can be:
Breach v Epsylon Industries Ltd  ICR 316 - When the employee needs to work to maintain or develop a level of skill; or
Devonald v Rosser & sons Ltd  2 KB 728 - If pay is based on commission or piecework; or
Turner v Sawdon & Co  2 KB 653 - If exposure of publicity is taken to be a consideration for the employee.
Delaney v Staples (T/a De Montfort Recruitment)  1 AC 687 HL - A failure to pay wages is a deduction for the purposes of the Employment Rights Act 1996.
Discount Tobacco & Confectionery v Williamson  IRLR 327 EAT - An employer cannot make a deduction from wages unless the employee has expressly agreed to this before the need for the deduction arises.
EMI Group Electronics Ltd v Coldicott  IRLR 630 HC - Non-payment of pay in lieu of notice is damages for wrongful dismissal and not a deduction of wages.
Mears v Safecar Security Ltd  QB 54 - If there is no express term on the issue of sick pay there is no presumption of a right to sick pay.
Miles v Wakefield Metropolitan District Council  IRLR 193 HL and Wiluszynski v Tower Hamlets London Borough Council  ICR 493 CA - A deduction can be made on account of taking part in industrial action.
James v Hepworth & Grandage Ltd  1 QB 94 - A higher duty of care may be due to some employees more than others.
Paris v Stepney Borough Council  1 All ER 42 - The standard of care is "the care which an ordinary prudent employer would take".
Bracebridge Engineering Ltd v Darby  IRLR 3 EAT and W A Goold (Pearmak) Ltd v McConnell  IRLR 516 EAT - There is a duty to provide and effectively operate a grievance procedure.
Although a breach has to be significant, a series of minor breaches, when taken together may amount a "last straw" situation and enable a constructive dismissal claim. Similarly, there may be a constructive dismissal if a term has been invoked in an unreasonable manner, particularly if this means that you are unable to comply with the term.It should be noted that conduct which may be acceptable in one particular type of situation, may not be acceptable in another. For example; language used on a building site may not be appropriate in an office environment.
Post Office v Roberts  IRLR 347 EAT and Woods v W M Car Services (Peterborough) Ltd  ICR 69 EAT - An employer should not destroy or seriously undermine the implied term of trust and confidence.
Hamill v Strong & Co Ltd EAT/1179/99 - A series of one-off incidents can give rise to a constructive dismissal.
Malik v BCCI  IRLR 462 - Dishonest conduct by an employer may be a breach.
Rigby v Ferodo  ICR 29 CA - Continuing to work is not necessarily an affirmation of a breach.
Western Excavating (ECC) Ltd v Sharp  QB 761 CA - The test for constructive dismissal is not a test of "reasonableness". In order to claim constructive dismissal, an employee will have to show that there was a breach, that this breach was fundamental and went to the root of the contract, and that the employee resigned because of the breach.
White v Reflecting Road Studs  IRLR 331 EAT - It unlikely to amount to a breach of contract if an employer is not reasonable when enforcing a term in the contract.
Duty of obedience.
Duty to adapt.
Duty to exercise care.
Duty of fidelity or good faith.
Duty to co-operate.
Duty of obedience
Morrish v Henlys (Folkestone) Ltd  ICR 482 - An employer cannot order an employee to carry out an illegal act.
Ottoman Bank v Chakarian  AC 277 PC - An employee is under a duty to obey reasonable and lawful instructions.
Cresswell v Board of Inland Revenue  IRLR 190 HC and North Riding Garages Ltd v Butterwick  2 QB 56 - An employee is under a duty to adapt to new methods of work.
Lister v Romford Ice & Cold Storage Ltd  AC 555 - An employer is vicariously liable for an employees actions. However, an employer may be able to sue an employee for indemnity.
The duty can be as follows::
You should not secretly profit in from your employment.
You should not compete with your employer or divulge trade secrets.
Ex-employees may be restricted from competing or divulging secrets.
Boston Deep Sea Fishing & Ice Co v Ansell  39 Ch D 339 - There is a duty to account for secret profits.
Hivac Ltd v Park Royal Scientific Instruments Ltd  Ch 169 - There is a duty not to go into competition against an employer.
Secretary of State for Employment v ASLEF (No 2)  2 QB 455 CA and Ticehurst & Thompson v British Telecommunications  IRLR 219 CA - The contract can include the implied term of fidelity and good faith, consequently an employee cannot disrupt an employer's business, even if this is by taking industrial action.
An employee cannot disrupt the employer's business. This may amount to a breach of contract, even if this is no more than a work to rule.
However, if there is a legitimate purpose, your employer may be able to impose new rules. There will usually be a term or condition that you will be expected to obey "rules" in the disciplinary procedure (usually under the gross misconduct headings). As you have an implied duty of obedience, this may mean that your employer can "instruct" you to obey certain rules.If a particular rule cannot be imposed on you because it does not have contractual force, any breach of this rule is unlikely to amount to a breach of contract on your part. However, there still remains your duty to obey lawful instructions or orders. This could be a potentially fair reason to take disciplinary action against you or to dismissal.
Dryden v Greater Glasgow Health Board  IRLR 469 EAT - An employer is entitled to introduce rules for the conduct of employees.
Secretary of State for Employment v ASLEF (No 2)  2 QB 455 CA - Unless individually stated in the contract, not every rule will have contractual force.
Prestwick Circuits v McAndrew  IRLR 191 CS and United Bank v Akhtar  IRLR 507 EAT - An employee must be able to comply with the rules.
Express incorporation: Any terms which are agreed by the parties to a collective agreement are expressly incorporated into your contract.
Conduct: In effect this is what has been agreed to through common practice.
Agency: Your contract may also be affected by way of agency. In effect, your trade union could be looked on as an agent acting on your behalf. There may be scope for this legally, but it is unlikely that a trade union, or indeed any of its members would agree to be tied to agency law in this way.
Burton Group v Smith  IRLR 351 EAT - A trade union does not necessarily act as an "agent" for its members.
Gibbons v Associated British Ports  IRLR 376 HC - Collective agreements are not always suitable for express incorporation into a contract.
Lee v GEC Plessey  IRLR - An employer cannot withdraw a term. In this case an enhanced redundancy pay scheme, the High Court held that the contracts included the benefits of the enhanced the redundancy pay.
Marley v Forward Trust  IRLR 369 CA - Terms that are expressly incorporated into a contract are enforceable.
Miller v Hamworthy Engineering  IRLR 461 CA - A non-trade union member, or a member of a different trade union can be bound by the express incorporation of a collective agreement.
Robertson v British Gas Corporation  IRLR 302 CA - An agreement that has been expressly incorporated cannot be varied unilaterally, but after the agreement has been incorporated there is no need for further agreement.
You may be able to enforce a claim under your contract if you were not aware that your employer was committing an illegal act, or if you did not make any gain from the act. It is your knowledge of the illegality and any benefit that you personally gain from it that can determine whether or not you can enforce the contract. In very limited circumstances an illegal contract may become legal.If your claim does not depend on the contract, for example a discrimination claim, you should be able to make a discrimination claim. Discrimination legislation protects employees from discrimination. Employment is defined as employment under a contract of service, or a contract to personally or execute work or labour. An employee should not be barred from bringing a discrimination claim through any illegality in the contract. Consideration has to be given to whether the individual was "employed" in determining whether an employee is entitled to protection against discrimination.
Annandale Engineering v Samson  IRLR 59 EAT - Occasional cash payments which are not taxed will not necessarily make the contract illegal. But see Cole v Fred Stacey below.
Cole v Fred Stacey  IRLR 73 - Accepting payments that are not taxed can make the contract illegal.
Corby v Morrison  IRLR 218 EAT - Even when there is no intention to defraud, the contract can be illegal.
Hewcastle Catering v Ahmed  ICR 626 CA - If an employee does not gain from the illegality, the contract may be enforceable.
Hyland v J H Barker  IRLR 403 EAT - Agreeing to any illegality, even for a short time could make the contract illegal.
Leighton v Michael  IRLR 67 EAT - An illegal contract will not bar a discrimination claim.
Rastegarnia v Richmond Design COIT 764/38 - A worker must be entitled to work in the UK.
Salvesen v Simons  IRLR 52 EAT - The contract will be unenforceable, even when the parties genuinely do not believe that they are involved in an illegal act.
Tomlinson v Dick Evans "U" Drive Ltd  IRLR 77 EAT - A knowledge of illegality can determine if rights are unenforceable.
Transfer of Undertakings (Protection of Employment) Regulations 2006 Reg 4There are perhaps three ways in which statute could impact on your contractual terms:
Direct imposition: Statute can directly impose a term into your contract. For example; an equality clause to ensure equal pay.
Restriction: Statute can restrict a negative a term. For example; the Sex Discrimination Act 1975 will null and void any term which restricts equal opportunities.
Implied: A breach by your employer of a statutory right may allow you to make a claim if it amounts to a breach of the duty of mutual trust and confidence.
If you have not received a written statement, you can request one. If your employer still refuses or fails to give you a statement or, alternatively if you have received a statement and it does not comply with the provisions of the Employment Rights Act 1996, or you do not agree with it, you can make a claim to an Employment Tribunal. The Employment Tribunal has the authority to decide what should be contained in the statement.
If you have made a separate claim to an Employment Tribunal, for example constructive dismissal, unfair dismissal etc., and you include a claim in respect of a failure to provide a written statement, you can be awarded a statutory maximum of two weeks pay or a maximum of four weeks pay.
If you are dismissed for requesting a statement, you can make a claim for unfair dismissal to an Employment Tribunal for "asserting a statutory right" even if you have less than one year's service.
The statement by itself is not a contract, it contains the main particulars (not the terms) of your employment. The statement can refer you to other documents, for example; disciplinary and grievance procedures, employee handbook, pension scheme etc. Any terms included in this documentation are included in your contract.
The main particulars required by the Act are:
Names of both the employer and employee.
Date of commencement of employment.
Date of commencement of continuous employment.
Information to be given at a specified date no more than seven days before the statement is given.
The scale of remuneration and method of calculating pay and pay period.
Terms concerning hours of work.
Holiday entitlement, including public holidays and holiday pay.
Provisions for sickness and sick pay.
Pension rights and pension schemes.
Period of notice on both sides.
Period of employment if it is not permanent.
Place or places of work.
Details of collective agreements which affect terms.
Specific details for working outside of the United Kingdom.
If no particulars are entered under these headings, then this fact should be stated.
The statement may refer the employee to other documents which provide more detailed information, but only if the employee has adequate access to those documents.
The statement must be given even if the employment is terminated within two months.
Details of disciplinary rules.
Details of grievance rules.
Gascol Conversions Ltd v Mercer  ICR 420 CA - The written statement of employment particulars can be strong evidence of what is contained in the contract, but
Robertson v British Gas Corporation  IRLR 302 CA - The written statement of employment particulars is not the contract.System Floors (UK) Ltd v Daniel  ICR 54 - An Employment Tribunal can draw prima facie evidence on the contents of the contract.
Alternatively, your contract can be changed with the agreement of your trade union or employee representatives. In such cases it is unlikely that your consent will be required.
If your contract is changed by your employer and you do not agree to this, then the this could be a breach of contract. If the breach is fundamental, (for example; a cut in pay, hours, holiday entitlement, or a change to your job etc) you may have grounds for a constructive dismissal claim. However, it is unlikely that you will be able to do very much about any change if this was agreed by your trade union or employee representatives.