Express and implied terms form the basis of every contract of employment and are essentially the rights and duties of both employers and employees in the contract of employment. Some rights and duties are explicit (ie express) and others are silent but underlie the functioning of the contract (i.e. implied).
The sorts of terms normally explicit in a contract of employment are those relating to:
- job title.
- rate of pay and how often the employee will be paid.
- hours of work.
- holidays and holiday pay.
- sick pay.
- notice pay.
- pensions and pension schemes.
- collective agreements that directly affect the terms and conditions of employment.
Express terms may be written or verbal. The law requires the above express terms to be put in writing and handed to you in the form of a written statement of particulars (see the Contract of employment guidance for more information).
The statement of particulars should also indicate whether your post carries a management responsibility point or if you are entitled to join the Teachers’ Pension Scheme.
If there is a change to any of the terms, your employer should let you know in writing within a month of the change. Any changes should be made with your agreement.
Contract changes without consent
If your employer tries to enforce changes to the contract without your agreement it is called ‘unilateral variation’. Usually this happens when an employer wants to change the terms of its entire staff or a section of staff, so take advice as soon as possible from the union and insist on collective consultation with the employer.
Your employer may seek to impose contract changes unilaterally by terminating the original contracts of all staff and offering them a new contract. This is technically a dismissal. You and your colleagues may have a remedy in law if you qualify to bring an unfair dismissal claim. You must seek prompt advice from the union if this happens because you can be taken to have agreed the changes by inaction.
Express term with more than one meaning
The general rule is that if an express term has more than one meaning, it will be given the meaning which least favours the party who drafted it, which in most cases will be the employer.
Employers do not always spell out every right and duty that forms part of the employment contract. This is because sometimes a right or duty will be obvious. Other terms are implied because they are needed to make the contract work in the absence of an express term.
Certain terms are implied in every contract of employment. Terms that are imposed either by common law (i.e. judge-made law) or by statute (i.e. laws made by Parliament) are deemed to be included in every contract of employment, whether or not the employer and employee intended them to be.
An express term in your contract cannot exclude a term implied by law. Terms imposed by law cannot be excluded from a contract by an express term, although some – not all – may be waived by agreement. Never agree to waive your legal rights without first seeking advice from the union.
Breaches of implied terms
The following have been held by the courts to breach the implied term of trust and confidence:
- failure to make a reasonable adjustment required by the Equality Act.
- failure to notify an employee on maternity leave of a job vacancy for which they would have applied had they known.
- aggressive attempts to persuade an employee to accept a change in the way they were paid.
- requiring an employee to move office from one part of England to another on a weekend’s notice.
- failure by an employer to adhere to a grievance procedure.
'Custom and practice’
Sometimes workplace entitlements become established rights. It is extremely difficult to argue that a term conferring rights has been implied into your contract of employment through custom and practice. The NEU would prefer, wherever possible, to secure your entitlements by negotiating express terms which confer rights on all the teachers and support staff employed by your employer.
Breach of contract
If your employer has breached a term in your contract it is likely that your colleagues have been similarly affected. In the first instance, ask your school rep to set up a union meeting so that affected staff can agree a course of action. If matters need to be escalated, your rep should contact the branch or district for assistance.
If the breach affects only you, seek advice from the NEU. Do not act before seeking appropriate advice.