KABUYE KENNETH
121-053011-24272
QN 1.
The employer may offer terms that are more favorable to the employee than
what the Act provides for, as envisaged under section 26(2) of the Employment
Act 226. Discuss the above legal provisions.
A contract of service is defined under Section 21 to mean a contract between an
employer and employee whether written or oral, express or implied where a person
agrees in return for remuneration, to work for an employer.
The employer may offer terms that are more favorable to the employee as
stipulated for under section 26(2)2
It provides that nothing in this section shall prevent the application by agreement
between the parties, of terms and conditions, which are more favorable to the
employee than those contained in this act.
These said favorable terms can be both express that’s within the contract of
employment and implied by the contract of employment. In regards to implied
terms, they arise about a matter on which the parties never reached actual
agreement. Therefore, when the contract was being made, they never even have
considered the matter or they have done so briefly without reaching any
conclusion.
The terms that can be implied by the contract of employment may include;
Implied term to indemnify the employee.
The employee is indemnified by the employer and holds him or her harmless for
lawful acts or decisions made by him in good faith while performing his duties for
employer in course of employment.
In the case of Re Famatina Development Corp.Ltd3 the court ordered the
employer to indemnify an employee who had successfully defended a libel action
brought against him while acting in the course of his employment.
Implied term to provide work to an employee.
1
Employment Act Cap 226
2
Employment Act Cap 226
3
[1914] 2 Ch 271
This term happens where an employee has skills which require work to be
provided to maintain those skills.
This was upheld in the case of Langston v Amalgamated Union of Engineering
Workers 4 where court was of a view that the employer must not unreasonably
withhold work when there is work to be done.
Therefore, it is an implied term of an employer to provide work except in
circumstances where, the contract is frustrated, its performance is suspended,
prevented by an act of God or civil upheavals, employer terminates a contract
among other conditions.
Implied term to pay wages.
The employer has a duty to pay an employee wages or remuneration and this arises
because when an employer agrees to make use of the services of an employee, he
or she will be impliedly undertaken to pay such an employee. The rate of pay and
frequency of payment are in a principle a matter of agreement between them.
This was upheld and maintained in the case Kisembo and 3 ors v Bundibugyo
District Local Government 5
Implied term to provide safe system of work.
Under common law there is a duty to provide a safe system of work and this
includes providing adequate materials and selecting proper staff
In Wilson’s and Clyde Coal Co. V English 6 it was held that a master has duty to
provide a safe system of work which duty he cannot delegate to an agent.
In conclusion therefore, section 26(2) of the Employment Act regulates all terms
both implied and express between the employers and employees, therefore, the
employer is at liberty to provide such terms favorably to the employee as discussed
above.
4
[1974] 1 ALLER 980
5
[1960] 1 WLR 1055
6
[1938] AC.57
