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There is no requirement for an employment contract to be in writing. The parties may have entered into an express agreement orally or they may have tacitly entered into an agreement through a course of conduct. Sometimes, there will be a written contract but it will not contain all the terms. In such cases, the conduct of the parties will be relevant to the construction of the contract.
In Maggs (t/a BM Builders) v Marsh [2006] EWCA Civ 1058, the Court of Appeal considered what principles should apply to the construction of oral contracts and concluded that it is permissible to have regard to what happened after the agreement was entered into in order to ascertain the credibility of each party's assertions about what was originally agreed:
"Determining the terms of an oral contract is a question of fact. Establishing the facts will usually, as here, depend upon the recollections of the parties and other witnesses. The accuracy of those recollections may be tested and elucidated by things said and done by the parties or witnesses after the agreement has been concluded. Receiving evidence of such words or actions does not mean that the judge is losing sight of his task of deciding what the parties agreed at the time of the contract. It is simply helping him to decide whose recollection is right."
The parties' conduct may also be relevant when ascertaining the extent of an implied term.
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