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
Key points - what to look out for
Termination and renewal of contract
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.
There must be an offer, consideration, acceptance and an intention to create legal relations.
An assurance that a job will be offered is too vague to form a contract and is not a job offer.
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If a conditional offer is withdrawn before you start work because one or more of those conditions were not met, it is unlikely that you will be able to claim any damages. However, you may be able to claim damages if the offer is withdrawn after you have started work.If the contract was for a certain period of time this is likely to be viewed as a "collateral" contract.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.
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.
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.
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.
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.
Brigden v American Express Bank  IRLR 94The Unfair Contract Terms Act 1977 can apply to contracts of employment.
Johnstone v Bloomsbury Health Authority  QB 333Almost any term can become express if it is agreed by the parties.
Sagar v H Ridehalgh & son Ltd  1 Ch 310For a term to be incorporated by custom and practice, it must be "notorious, certain and reasonable".
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 77The following are implied terms or duties which are due to you from your employer:
The House of Lords ruled that employees are entitled to derive a benefit even when they are only informed of the benefit.
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.
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 728As long as wages are paid, generally an employer does not need to provide work. The exceptions can be:
Breach v Epsylon Industries Ltd  ICR 316When the employee needs to work to maintain or develop a level of skill; or
Devonald v Rosser & sons Ltd  2 KB 728If pay is based on commission or piecework; or
Turner v Sawdon & Co  2 KB 653If exposure of publicity is taken to be a consideration for the employee.
Mears v Safecar Security Ltd  QB 54If 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 andWiluszynski 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 94A higher duty of care may be due to some employees more than others.
Paris v Stepney Borough Council  1 All ER 42The standard of care is "the care which an ordinary prudent employer would take".
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
Malik v BCCI  IRLR 462Dishonest conduct by an employer may be a 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 482An employer cannot order an employee to carry out an illegal act.
Ottoman Bank v Chakarian  AC 277 PCAn employee is under a duty to obey reasonable and lawful instructions.
North Riding Garages Ltd v Butterwick  2 QB 56An employee is under a duty to adapt to new methods of work.
Lister v Romford Ice & Cold Storage Ltd  AC 555An 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 339There is a duty to account for secret profits.
Hivac Ltd v Park Royal Scientific Instruments Ltd  Ch 169There is a duty not to go into competition against an employer.
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.
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.
Lee v GEC Plessey  IRLRAn 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.
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.
Occasional cash payments which are not taxed will not necessarily make the contract illegal. But see Cole v Fred Stacey below.
Accepting payments that are not taxed can make the contract illegal.
Transfer of Undertakings (Protection of Employment) Regulations 2006 Reg 4
There 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. You can download a template for this below and an example written statement of employment particulars. You can alter the wording of the template if you wish to suit your own style of writing or circumstances, but you should keep to the basic format and ensure that the same meaning is conveyed in your letter. You cannot alter the example written statement.
Sample letter: Request for Written Statement of Employment Particulars
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, butRobertson 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.
In most cases, your employer must get your agreement before your contract can be changed. There are circumstances where this may not be necessary. For example, if the change is reasonable, necessary, or essential, then your employer may be able to introduce the change. However, you must be fully consulted as the change has to be implemented in a reasonable way.
Be wary about signing anything that allows your employer to deduct money from your wages. For example; your employer may try to pass some costs on to you to recover losses from your wages for breakages, damages or additional costs incurred by your employer.
Some contracts have a clause which allows your employer to change your terms and conditions. However, you are still entitled to receive reasonable notice of any change, and you can still object to a change which you consider to be fundamental, for example; a reduction in pay, or holiday entitlement etc.
Some contracts have a clause which allows your employer to ask you to work in different locations. If so, then you are entitled to receive reasonable notice before being asked to work in a different location. In addition, the request must be reasonable, for example; your employer cannot reasonably expect to work in a location which is far from where you live or difficult to reach if you use public transport.
Your employer must follow certain steps and fully consult with you. Your employer must also give you the correct notice before your contract is terminated. The notice period is the same notice that you would be entitled to if you were dismissed. This is one week's notice after one month's service, and one week thereafter for each complete year of service up to a maximum of 12 weeks or 12 years service.If you accept the new contract, your continuity of service should not be affected. If you have worked for more than one year, and your employer has followed an unfair procedure, or has not given you the correct notice, you may have the right to refuse to accept the new contract and claim unfair dismissal and the correct notice that you were due.
However, you should note that an Employment Tribunal may very well rule in favour of your employer if there were good business reasons for terminating the old contract and issuing a new one. This type of termination is referred to as a dismissal for some other substantial reason.