LAST month we had a look at the Terms of Employment Information Act 1994 which gives workers certain rights to information about their employment. This, as we said, is separate from the contract of employment itself. However, sometimes when the question is asked, “Do you have a contract of employment?”, the answer given is “no”. Generally what the person means is that they don’t have one in writing.

So, does a contract of employment have to be in writing?
It is important to recognise that while contracts of employment are generally in writing they do not have to be. You can have a contract of employment which is verbally or orally agreed. On occasions it is possible to have a contract which is regarded as being “employed” by the actions of both parties i.e. the worker and the employer. Having said that, most people nowadays have contracts of employments which can be quite simple and contained in a letter or small document, or can be in the form of quite an extensive document containing many pages and various clauses.

Do I actually have a contract of employment?
This is a more fundamental question that arises sometimes when workers are taking claims against the person they understand to be their employer and who then turns around and denies the relationship. In most cases it requires the decision or judgment of a body such as the Employment Appeals Tribunal or a court to determine the issue. The law distinguishes between what is known as a “Contract of Service” and a “Contract for Service”. Put simply, the “Contract of Service” describes an employee while the “Contract for Service” describes what is known as an independent contractor i.e. someone who works for themselves.

The significance of the distinction is that the worker under the “Contract of Service” has all of the rights and duties of the employee including the right to be covered by employment law. The second category does not have these rights and consequently is not covered by employment law. The problem is sometimes in distinguishing between them both, particularly when the relationship with the “employer” is of long duration. However, the courts employ a number of legal tests to examine the relationship and look at issues such as who controls the work, whether the worker is in business for themselves and also “the realities” on the ground.

What is in the contract of employment?
The contract will usually contain some clauses to do with pay, hours of work, benefits and possibly some procedures. The more complex contracts can have a lot of such clauses. These are known as the “express” terms of the contract – in other words, those that are in writing or have been made clear verbally. However, it is important to note that there are other terms which are “implied” into the contract such as rights under employment law, under collective agreements and what are sometimes referred to as “common law duties”.

An example of the matter is the duty of the employer to have reasonable care for the health and safety of employees. Because employment contracts can cause difficulties, but are very important documents, members should seek advice from the union when queries arise.

Written by Michael Halpenny, Head of SIPTU Legal Rights Unit.
This article was published in the March 2011 issue of Liberty.


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