LRD Booklets September 2013

Contracts of employment - a guide to using the law for union reps

Introduction

Introduction

Ongoing coalition government attacks on employment rights mean there has not been a more important time in recent years to be an active trade union member. TUC general secretary Frances O’Grady recently warned that working people should be “very afraid” in response to comments from Conservative party chairman Grant Shapps that a future Conservative government priority would be to make it even easier for employers to sack staff.

The aim of this booklet is to help trade union reps protect their members from attacks on their terms and conditions by explaining the key features of contract law in a clear way. The booklet sets out to equip reps with enough knowledge of the rules and key issues, including recent important cases, to enable them to identify a contract breach, to challenge changes to contract terms, and to understand their legal rights if change is imposed.

New research by the Chartered Institute of Personnel Development suggests that more than a million workers are on zero-hours contracts, far more than official figures suggest. But instead of targeting these and other abuses, which are an inevitable consequence of the government’s deregulatory policies, ministers are championing policies that, according to coalition minister Greg Barker, “Margaret Thatcher could only have dreamed of.”

This government is determined to erode pay and conditions across the public sector, including the contracts of teachers, health workers, civil servants and local government staff, by breaking down national pay agreements and undermining collective bargaining. The aim is to privatise public services by making it easier for incoming service providers to cut terms and sack workers following an outsourcing, or through policies such as forced “academisation” — more than half of secondary schools are now converted to academies, with the freedom to set terms and conditions for new staff at workplace level.

Sources in the Guardian and the Financial Times in 2013 put the estimated value of public sector outsourced contracts at £101 billion by 2014-15.

The government’s assault on collectively agreed terms affects not only public sector workers, but also private sector workers who have already transferred to the private sector with their terms protected by the Transfer of Undertakings (Protection of Employment) Regulations. The government’s actions and future plans threaten the livelihoods of ordinary people across the whole of the economy.

Perhaps the most damaging of all the coalition’s changes to employment law has been the introduction of tribunal fees. From 29 July 2013, workers now have to pay fees of up to £1,200 to enforce their rights in the employment tribunals. By the government’s own estimates, this policy will take more than £900,000 a month from the pockets of claimants, providing the government with an extra monthly income stream of around £800,000.

The booklet is divided into 10 Chapters, covering the following issues:

• Chapter 1 examines what makes a contract of employment, including the core requirements of a contract: offer and acceptance, certainty, an intention to create legal relations and consideration (normally wages). This Chapter also explains how illegality affects the enforceability of employment contracts, for example, the right to receive the National Minimum Wage;

• Chapter 2 looks at the tests used to deciding who is an employee and the legal differences between employees, workers and the self-employed, as well as the problem of bogus self-employment;

• Chapter 3 looks at employment status in the context of those with irregular patterns of work, including workers on zero-hours contracts, other casual workers, interns, temporary agency workers and employees with fixed-term contracts;

• Chapter 4 looks at the statutory written statement of employment particulars — what should it include, what rights are available if it is not provided or is inadequate, and what is its legal status;

• Chapter 5 looks at the rules used by courts and tribunals when interpreting contract terms, including the difference between express and implied terms, as well as terms implied through custom and practice, and gives examples of some of the key implied rights in the employment contract;

• Chapter 6 looks at terms incorporated from collective agreements, including how courts and tribunals interpret these terms, and their legal status;

• Chapter 7 looks at using the law to resist change to employment contracts;

• Chapter 8 looks at contract change in the context of TUPE;

• Chapter 9 looks at termination of the employment contract; and

• Chapter 10 looks at how to use courts and tribunals to enforce contract terms.

The booklet provides relevant examples from tribunal decisions (case law) throughout. Most of these cases can be freely downloaded from the website of the British and Irish Legal Information Institute (BAILII).

As well as its booklets and other publications, the LRD runs a telephone advice line for affiliated organisations, providing day-to-day advice and guidance to reps. The phone number is 0207 928 3649. Alternatively, www.lrd.org.uk/index.php?pagid=51 or email LRD at info@lrd.org.uk. If your branch is not already affiliated to the LRD, please use the same telephone number or email address for details about how to do this.