What Are Express and Implied Terms of Employment Contracts in the UK?

Understanding the interplay between express and implied terms is crucial for employers and employees. This article will delve deeper into these concepts, exploring their significance in UK employment law and how they shape the employer-employee relationship.

An employment contract is a legal agreement between you and your employee. It sets out your obligations towards each other and the rights and responsibilities in the employment relationship. Employment contracts are crucial for a successful employment relationship. Likewise, they serve as a reference tool to clear up any confusion concerning your employee’s work. Therefore, you should ensure you draft your employment contracts carefully and correctly. This requires you to understand the main employment terms your contract should contain and those required by law. This article will explain the express and implied terms of an employment contract. It will give examples of each and highlight some helpful information about them.

Express and Implied Terms

Employment contracts consist of two types of terms: express and implied. Express terms are those explicitly agreed upon and documented in the agreement, such as salary, working hours, and job responsibilities, and form the foundation of the employment relationship. Implied terms, on the other hand, are not written down but are understood to be part of the employment contract. These can include expectations like employee honesty and professionalism. Implied terms may arise from custom and practice within an industry, statutory law, or the mutual understanding between employer and employee.

Tips for Businesses

You should clearly outline express terms in employment contracts to avoid misunderstandings. Be aware of implied terms that, while unwritten, are legally binding and essential for maintaining a positive working relationship. You should also regularly review contracts and workplace practices to ensure they align with both express and implied obligations.

Express Terms of Employment Contracts

Express terms of an employment contract are the specific terms within it. They cover explicit rights and duties. For example, information like your employee’s pay and working hours is an express term. Indeed, express terms of an employment contract are those that you and your employee agree to.

Express terms are agreed upon in writing or verbally at the interview with your employee. However, some express terms must be written within a ‘written statement of particulars’. Essentially, this document will contain the main conditions of your employee’s employment with you and will usually be set out in the employment contract. You must give this to your employees before they start their job with you or on the day they begin. 

Some express terms are typically found in writing within an employment contract. These include:

• the job title;
• the pay rate;
• when you pay your employee;
• working hours;
• sick pay;
• notice pay;
• information about pensions, including any pension schemes; and
• collective agreements. These are where you have an agreement with your employees’ representatives to negotiate their terms and conditions.

Implied Terms of Employment Contracts

Implied terms of an employment contract are the terms that should be evident to both you and your employee. For example, they should understand that an employee should not steal from you or be impolite when dealing with clients. You can think of implied terms as the silent terms of an employment contract. Indeed, they exist the moment both parties enter into the contract.

Additionally, you may have implied terms in your employment contract:

• through custom and practice;
• through law; or
• to demonstrate what you both intended in the employment contract.

Despite implied terms of an employment contract being obvious and silent, they are still essential to ensure a good working relationship between you and your employee. Sometimes they are in place because they are needed, and there is no express term on this subject. 

Implied Terms

As implied terms of an employment contract are obvious, there is no need to write them. However, it is still good practice to clarify rights and obligations. For example, you may write them in an employee’s handbook. 

Further, some implied terms will be present in every employment contract because the law protects them. Therefore, you have no choice as to whether or not to include them. Examples of these are implied terms relating to:

• equal pay;
• your duty of care;
• a safe working environment;
• mutual trust and confidence;
• acting in good faith;
• dealing with any grievances; and
• working in confidence, e.g. maintaining trade secrets.

Valuable Points to Consider

Your employment contract and working relationship with staff will give rise to numerous obligations. Sometimes, these obligations may not be clear to you, or there is a misunderstanding between your expectations and those of your staff. 

First, it might be the case that an express term has more than one meaning. Generally, a court will use the meaning that least favours the person who wrote it.

Secondly, you cannot use an express term to exclude an implied one if it is implied by law. You also cannot waive some implied terms from an employment contract by using an express term unless you and your employee agree to this.

Thirdly, you also cannot override express terms with an implied term.

Finally, if you leave an essential term out of your employment contract, a court can imply this into the agreement. A court will do this when it believes that when you and your employee entered into the employment contract, you both intended it to include it.

Key Takeaways

Employment contracts are crucial to your relationship with your employees, so it is essential to draft them correctly. To do so, you must understand what employment contracts should contain, such as express and implied terms. For example, your employment contracts will have express terms such as the pay rate and your employees’ work hours. They will also contain implied terms reasonably obvious to you and your employee. Some of these terms are a legal requirement, so you must be aware of them. For example, your duty of care towards your employees is a legal requirement.

If you need help understanding express and implied terms in employment contracts, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

Frequently Asked Questions