‘Individual express terms are not the main source of terms in contracts of employment.’

Discuss.

• You should point out that most workers do not have individual bargaining power. This means that they often have to accept the terms offered by the employer. Alternatively, terms may be negotiated by a trade union and incorporated into individual contracts. You might refer to Malone v British Airways [2011] in ‘Collective agreements’ on p 21.
• You should indicate that s 1 ERA 1996 requires certain terms to be identified in a statutory statement of particulars. The statement itself may refer to collective agreements that regulate the particular relationship.
• Statute and Regulations are another source of terms and you should provide examples, eg the sex equality clause inserted by the Equality Act 2010 and the National Minimum Wage Act 1998. You should indicate that contracting out of statutory rights is not normally permitted.
• You should discuss implied terms of fact and law. In relation to the former, you should indicate that these will only be allowed if it is necessary to insert a term to fill a gap in the relationship or in the interests of business efficacy. You might refer to Scally v Southern Health Board [1991] on p 24. The implied terms of law should be outlined. You might refer to Malik v BCCI [1997] on p 24 and Faccenda Chicken Ltd v Fowler [1986] on p 28. You should state that express terms normally take precedence over implied terms.
• You should explain the role of collective agreements, workforce agreements, works rules, and custom and practice as potential sources of terms.
• You might conclude by stating that even where there are detailed individual express terms these must always be seen in the light of statutory minimum rights and implied terms of law.
• For more examination material you should read Questions and Answers Employment Law 2018 by Roseanne Russell, published by Oxford University Press.