IMPLIED TERMS IN UK EMPLOYMENT CONTRACTS AND THE PROTECTION OF EMPLOYEES: A CRITICAL EVALUATION OF LEGAL FOUNDATIONS, JUDICIAL PRACTICE, AND REFORM
Ishaq Saad Idris
Volume 5 Issue 2
Abstract
This study is a critical analysis of the protection afforded by implied terms under UK employment law, focusing on the principles, interpretation, relevance and reform of implied terms. Express terms are explicit contractual duties of the employer and employee, but implied terms act as a safety net, filling in gaps in the contract and offsetting the imbalance of bargaining power in employment agreements. The paper examines the principal implied terms of the contract of employment that have been identified in UK employment law, namely the duty of mutual trust and confidence, to provide a safe working environment and the duties of fidelity and obedience. It considers the way in which these terms have been defined and used in the leading cases of Malik v Bank of Credit and Commerce International SA, Wilsons & Clyde Coal Co Ltd v English, Johnstone v Bloomsbury Health Authority and Autoclenz Ltd v Belcher. The analysis suggests that the function of implied terms is a significant protective one, as they foster fair, cooperative, dignified and well treated working relationships, particularly where there has been an absence or a lack of express contractual protections. They also enable courts to introduce flexibility in legal principles to accommodate shifting labour market circumstances such as informal and non-standard working time patterns. The paper also has some major flaws. Many implied terms are judge-made and so their application may be unpredictable, inconsistent and impracticable for both employers and employees. This conflict gives rise to wider issues of the concept of legal certainty, judicial discretion, and freedom of contract. The paper concludes that implied terms are essential to employee protection in the UK, but that they would be more effective if targeted reform were to be implemented. It suggests that key implied duties be codified, improved drafting, extending protections to gig economy workers, and a new wide-reaching duty of good faith in employment. Keywords: Implied terms; Employment contract; Employee protection; Mutual trust and confidence; Duty of care; UK employment law; Constructive dismissal; Good faith
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