The relationship between express and implied terms

A term cannot be implied to contradict an express term, but an express term can be made subject to an implied term. For example, in United Bank Limited v Akhtar [1989] UKEAT/230/88/1210, the employment contract of a low-paid bank clerk included an express mobility term that allowed his employer to relocate him temporarily or permanently anywhere in the United Kingdom without compensation or notice. Unreasonable refusal to relocate could result in dismissal. When the employer demanded, after 10 years service, that Mr Akhtar relocate almost immediately from Leeds to Birmingham, he resigned and claimed constructive dismissal. The EAT held that the bank’s express contractual right to relocate him was subject to three implied terms:

• an implied duty to give him reasonable notice of the relocation;

• a broader implied duty not to exercise an express term so as to make the practical performance of the contract impossible; and

• an implied duty not to act in a way calculated or likely to destroy or seriously damage the duty of mutual trust and confidence.

It is important to appreciate the limits of these implied terms. In particular, there was no implied obligation on his employer to act reasonably when enforcing the mobility clause on Mr Akhtar.