In a contract of employment between employee and employee, there are certain terms which need to be specified. Under common law, the concept of voluntary consent to enter a valid contract of employment is prevalent based on the freedom of contract as evolved by Courts in the 19th century. It was presumed that such contracts were entered into by equals who have negotiated freely. However practically parties to employment contracts are not equals hence there has been statutory intervention in employment matters. The general rule of English Law is that employment contracts need not be in writing. All that was needed was an agreement to do a particular job in return for a specified amount of money. Agreement may be reached by word of mouth or in writing or entered from conduct, for example, an employee who stays on after changes in his work may be deemed to accept those changes unless he can prove complains or other convincing evidence to the contrary. However, as flows from logic, from the law of evidence, it should be clear that the best proof of employment is documentary evidence without such documentary evidence of agreement only one party’s word against the other is useful in deciding any issue in dispute.
It is for that reason that in industry and commerce it has been the practice for many years to cover some of the conditions of employment in written terms. In the last three decades the law in England has made many exceptions to the general rule that writing is not necessary. Sections 1-11 of Employment Protection (Consolidation) [EPCA] Act 1978 as amended in 1983 provides for the most substantial requirements as to writing. The effect of the provisions is to ensure that employees have a reasonable degree of certainty as to the terms of employment. There seems to arise doubts and disputes over this crucial question.
In Kenya, the Employment Act regulates individual employment law. The Act does not replace but supplements common law. The effect of S.9 of the Act is that all contracts of employment except those whose duration is for less than an aggregate of 3 months must be in writing. The responsibility for writing of contract is on the employer and the act section 10 specifies the period within which the contract must be reduced into writing as two months from the date when the employment begins.
The position in law is that the contract must set out the terms of contract between the parties and at common law the contract was referred to as a “written statement.” The contract is intended only as a record of particulars required under the Employment Act.
However, under section10(2) certain terms must be specified. They include the following:
1. the name, age, permanent address and sex of the employee;
2. the job description of the employment;
3. the date of commencement of the employment;
4. the form and duration of the contract;
5. the place of work;
6. the hours of work;
7. the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits;
8. the intervals at which remuneration is paid; and
9. the date on which the employee’s period of continuous employment began, taking into account any employment with a previous employer which counts towards that period; and
10. any other prescribed matter.

In supplementary documents such as terms of service statement, the following should be set out:
1. entitlement to annual leave, including public holidays, and holiday pay, (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated);
2. incapacity to work due to sickness or injury, including any provision for sick pay; and
3. pensions and pension schemes,
4. the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment;
5. where the employment is not intended to be for an indefinite period, the period for which it is expected to continue or, if it is for a fixed term, the date when it is to end;
6. either the place of work or, where the employee is required or permitted to work at various places, an indication of that place of work and of the address of the employer;
7. any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the person by whom they were made;
8. where the employee is required to work outside Kenya for a period of more than one month— the statement should show:
i. the period for which that employee is to work outside Kenya; o the currency in which remuneration is to be paid while that employee is working outside Kenya;
ii. any additional remuneration payable to the employee, and any benefits due to the employee by reason of the employee working outside Kenya; and
iii. any terms and conditions relating to the employee’s return to Kenya.
9. the disciplinary rules and procedures applicable to the employee if the employer has employed more than 50 employees – see. S. 12.
The assumption at common law with respect to contract of employment was that parties were equals and that there was negotiation before the employment. In practice however, more often than not there are never any negotiations and more often parties are not equals. The dominant practice is that of standard contracts where the employee merely signs to signify consent. Equal bargaining power does not exist in the field of individual employment. The only way in which that imbalance is improved is through collective bargaining by trade unions. The contract of employment creates rights and duties between employer and employee. For that reason, any term in a contract of employment must be firm and unequivocal so that if one accepts a term of employment subject to conditions no contract of employment arises.

In Loft –vs- Roberts (1902) AC 40 it was thus held:
That all terms must be ascertained or ascertainable. If not, it cannot constitute a term of contract as such terms are supposed to create rights and duties which must be known or capable of being ascertained.

Where the terms of contract can be ascertained from conduct, regular and easily ascertainable conduct must be shown. Certain terms if not expressly provided for in contract are implied in the contract of employment. This is to safeguard the employees’ weak position in the relationship and arrest instances in which employer fails to take into account employee’s interests. Under section 13, The employer is obliged to notify the employee of any change in terms and conditions of employment. This doesn’t mean that employer has the right to vary terms unilaterally. The only one exception to this in circumstances where such variation improves terms of employment of employee.