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The employment contract and unfair contracts legislation

Published online by Cambridge University Press:  02 January 2018

Douglas Brodie*
Affiliation:
School of Law, University of Edinburgh

Abstract

In 2005, the Law Commissions published a report reviewing unfair contracts legislation in the UK. Where the contract of employment was concerned, the Commissions were of the view that, in short, the status quo should remain. This paper seeks to appraise that position and considers whether an opportunity to bring forward beneficial reforms has been missed. The paper takes cognisance of the legislative scheme in New South Wales, which contains extensive powers where unfair contracts are concerned. It is suggested that, in the UK, the two key issues which need to be addressed are contracting-out and terms which may be substantively unfair.

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 2007

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References

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2. Unfair Terms in Contracts Law Com No 292; Scot Law Com No 199.

3. Ibid, para 6.8.

4. The equivalent section in Scotland is s 16.

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7. It may be noted that the Scottish equivalent of s 3 (s 17) does refer to a standard form contract.

8. [2000] IRLR 94.

9. Ibid, at 96.

10. Ibid, at 94.

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37. Ibid, at 346–347.

38. Health and Safety at Work Act 1974, s 2.

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40. Johnstone v Bloomsbury HA, above n 35, at 346–347.

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42. I leave to one side questions relating to the appropriate scope of the duty where protection against psychiatric harm is concerned. See Barber v Somerset CC [2004] IRLR 475.

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44. Ibid, at 38.

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46. Industrial Relations Act 1996, s 106.

47. Ibid, s 105.

48. Ibid, s 106.

49. As well as being able to vary or avoid the contract, s 106 of the Industrial Relations Act 1996 also empowers the Commission to make a consequential order for the payment of such a sum of money as is just in the circumstances of the case.

50. Moray Vincent v Merrill Lynch Australia [2000] NSWIRComm 160.

51. [1998] NSWIRComm 360.

52. I would also suggest that if powers of this type were introduced the relationship between any new statutory scheme and existing statutory rights should be expressly addressed. Where Parliament has legislated on the subject of substantive employment rights it has tended to lay down minima. It might be said that if an employer has complied with such provisions it would be inappropriate to hold that a term was unfair. Of course in some industries bare compliance with statute would be out of line with general standards and a term might be held to be unfair on that basis.

53. [1978] IRLR 63.

54. Repealed by s 19 of the Employment Act 1980.

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