In order to discuss and analyse the above statement, in depth reference will be made to various documents which can in some circumstances relate to contracts of employment and whether those particular documents which are not contractual can be incorporated into a contract, creating legal enforceability for employers and employees. Firstly it must be established what exactly is a contract of employment.
A contract of employment is an agreement between an employer and employee, forming the basis of an employment relationship; enforceable by law. Contracts of employment may be given orally or in writing: Employment Rights Act 1996 s 230(2) and commence immediately. Actual written contracts require an employee's signature and the signature of a company representative. Contracts of employment can involve both express and implied terms and can appear in many forms. The express terms, being those which both parties have agreed to, whether by signing a contractual document or acting in a particular way are seldom found in just one document. Terms are repeatedly found in an array of documents, whether they be from the actual formal contract, written statements or an employee handbook. The two latter documents are just some examples of prima facia non contractual documents.
In reality very few employees have a formal written contract of employment , but to whom the act does apply: must receive a statement setting out the key particulars of their employment in writing within two months of commencing employment . Written statements are known as the Terms and Conditions of Employment: essentially evidence of the contract, providing clarity for both employee and employer but it is not the actual contract of employment per se. A written statement was fundamentally intended only as evidence of contractual terms but ‘it is possible to point to early cases where courts have showed themselves ready to incorporate terms from the written statement into the individual contract of employment, particularly where the statement appeared to have been accepted without protest for a reasonable period of time’ . The case of Gascol Conversions v Mercer demonstrates an instance whereby the statutory particulars were held to be the contract, as the statement of the written terms had been sent to the employee who had signed them and a receipt. In other words he was agreeing that the document accurately represented the terms of the employment, he had signed what he acknowledged to be a written contract. Clearly demonstrating that a document that is not itself contractual can be incorporated into a contract, it is thus possible for what would normally be a section 1 statement to be transformed into a formal written contract by the parties signing it . Later cases showed a somewhat opposing view
System Floors (U.K.) Ltd. v. Daniel
 I.C.R. 54, noted (1982) I.L.J. 118. Employment Appeal Tribunal.
This was not really a contractual term at all, but a factual statement,...