DRAFTING CONTRACTS OF EMPLOYMENT             
Implied terms and conditions

The following headings are sometimes drafted into statements of terms and conditions and therefore would become express terms. However, whether or not the terms are specifically expressed the employer has the right to expect reasonable levels of conduct and standards within the workplace and in some aspects, outside the workplace as well. These aspects of conduct and behaviour constitute terms that are generally implied.

The clauses are by definition general and to make them express requires careful drafting to avoid any potential for claims of discrimination or breaches of Human Rights etc.

Ø Duty to report wrong doings of others
If you observe wrongdoing in the workplace it is reasonable for the employer to expect you to report it to a responsible/relevant person. Also impacts on public disclosure. eg: theft of office property. Has an effect on the bottom line and therefore does impact ultimately on all staff.

Ø Exclusions from the disciplinary procedure
Linked usually to the reporting of wrongdoing or public interest disclosure.

Ø Undertaking to behave
The employer has a right to expect employees to behave in an appropriate manner whilst engaged in the employers work or on the employer’s premises. Sometimes can be extended to outside work, eg: disciplinary action could be taken in the employer finds out that the employee has been denigrating the company in public.

Ø Relationships at work 'Consensual relations'
In implied terms there is an expectation that ‘consensual relationships’ will be carried out discreetly and will not affect the organisation or upset/embarrass other employees. Watch ‘The Bill’ to see how this can really affect working relationships – cause and effect.

Ø Dress and appearance
It is entirely reasonable for an employee to expect employees to turn up for work appropriately attired for work. eg “I’m sorry but ripped jeans (or cropped top) are not appropriate for work” Don’t forget you may have to answer the ‘why?’ question and very importantly, avoid inadvertent discrimination.

Ø Gambling, financial propriety etc.
Most employers are quite happy for occasional office sweepstakes and raffles etc to take place on work premises. They undoubtedly expect that employees will not effectively become bookmakers or hold high value poker schools on company premises. Such activities can become disruptive and potentially damaging especially if one employee were to lose money and the creditor were to take matters into their own hands. The employer may actually have some liability if knowingly allowing such activities.

Ø Entertaining clients
Usually covered in staff handbooks but the employer has an expectation that entertaining will be appropriate and cannot be construed as an incentive etc.

Ø Insider dealing
Whilst very relevant for the finance sector, the employer has a right to expect that the employee does not use any form of privileged information for personal gain. Many contracts have specific confidentiality clauses

Ø Personal transactions
Linked in many respects to gambling and financial propriety but there is an overall expectation that the employee will conduct personal affairs honestly and therefore not bring any adverse aspect to the company. eg. Employee unable to handle money and takes personal bankruptcy. The employer would not expect to see a piece in the newspaper quoting the employee stating that their financial ills were all related to the fact that the employer didn’t pay enough.

Ø Change of personal circumstances
Usually stated in staff handbooks etc, but the employer has an expectation that the employee will advise changes in personal circumstances for purposes of pay and pensions, record keeping etc.

Ø Smoking Policy
Smoking policies are by their very nature usually express; however, verbal instructions in place of the written also have weight.

Ø Rules on Alcohol and Drugs
As for smoking, however, there is an implied term that the employee will not attend work if under the influence of alcohol or non-prescribed drugs. To do so, would usually incur disciplinary penalty. Prescribed drugs causing side effects would be treated according to the circumstances of the case, however, there is a need for both parties to be aware of ‘drowsiness’ notices where employees drive or use machinery.

Ø Personal Search
Obviously contentious, but it would not be unreasonable for an employer to request an employee to submit to bag or personal search. NB: The request cannot be forced at risk of assault charges or breach of human rights. Objection would normally result in police action. The implication for the employee is if they are seen stealing then there is an expectation they might be stopped and challenged. Use with extreme caution and if stealing is a real problem (ie retail sector) then get a watertight policy and make the term express.

Ø Personal Liability
Think health and safety and negligence. The expectation is that if you cause an accident which causes injures or damages property, it is not unreasonable for the injured party, employer or employee to seek redress. Conversely, if the employee is injured they may also sue.

Ø Patents and Inventions
Usually an express clause but if an employee invents something using the employers time, materials intellectual property etc, it is not unreasonable for them to expect some of the profit.

Ø Lecturing and writing
As above.

Ø Requirement to work efficiently and with speed.
Think ‘plumbers from hell’ Employers will have an expectation that work will be completed effectively’, efficiently and within an appropriate time scale.

Ø Behaviour at offices
Covers all the above. There is an implied term that employees and employers will behave in an appropriate manner at all times.

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