Know Your Rights with Innocent Chuzwueki
‘Express terms’ are terms of employment expressly spelled out and agreed between the employer and employee. These may be oral or in writing and usually include but are not limited to things like work hours and overtime (within legal limits for maximum working hours per week); salary, overtime pay or bonus pay; sick pay, redundancy pay and holiday pay; and how much notice an employer is required to give to in the event of dismissal or termination.
Whether or not employment contracts are in writing, certain terms are implied into every employer-employee relationship. The effect is that even where employers and employees do not specifically insert them in employment contracts, these ‘implied terms’ are still part of their contractual relationship. Employers should be cognisant of these terms and should realise that the existence of copious contractual documents between them and their employees do not necessarily exclude the operation of these implied terms.
For reasons of convenience, the terms that are implied in every contract of employment could be grouped under the following headings:
- Terms implied by common law: These are terms that judges over the years have decided should be part of employment contracts: for example, the duty of the employer to provide a safe working environment, a safe system of work, competent co-employees and proper equipment for the employee, and the duty of the employee to keep and maintain the trust and confidence of the employer.
- Terms implied by statute: These are terms that the Dáil, through its laws, says must be part of employment contracts. Some examples of these terms are the right not to be unfairly dismissed as provided for in the Unfair Dismissal Acts 1977-2007; the right to maternity leave as provided for under the Maternity Protection Acts 1994-2004; the right not to be discriminated against under the Employment Equality Acts 1998-2011; and the right to notice provided for under the Minimum Notice and Terms of Employment Acts 1973-2005, to mention just a few.
- Terms implied by the Irish Constitution: For example, Article 40.6.1(iii) of the Constitution guarantees the right of citizens to form associations and unions. This has been interpreted to extend to the right of employees to join trade unions. However, the employer does not have to recognise any union.
Terms implied by customs and practice: An employment term could find its basis from practices that are customary in a particular industry or local area. In other words, for a term to be implied by custom and practice it must be “so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties.” Under this heading, employers and employees should realise that even where there is no express contractual term covering a particular issue, they can look at existing custom and practice in the workplace and this could form the basis of a right for an employee. For instance, where an employer always gives an employee a day’s holiday in June, even if this is not mentioned in any place in the written employment contract, this will form part of the contract as it is the usual practice in the workplace.
- Collective agreement terms made by the employer with trade or staff union in unionised employments: This applies where, for example, a trade union negotiates an agreement about conditions of work with the employer on behalf of the employee. Such negotiated work conditions will form part of the contract.
- Terms implied by EU law: many of the legislations governing employment law in Ireland are direct results of EU regulations, directives, decisions and recommendations of the EU institutions.
To be continued...
Innocent Okey Chukwuezi is a qualified solicitor of the Law Societies of Ireland, England and Wales. He was called to the Nigerian bar in October 1987, and holds a BL degree from the University of Nigeria Nsukka and a Master’s in Commercial Law from University College Dublin.
