Authority and Co-Operation Flashcards
What is one implied obligation the employee is under?
To obey lawful orders.
Why is the employer granted a wide discretion to direct work as they choose?
To adjust the details of work according to ever-changing requirements and to facilitate efficient management.
What limitations are there on the implied obligation to obey lawful orders?
1) Must fall within the scope of the job described in the terms of the contract.
2) The orders must be lawful.
Why have implied terms played an important role in employment contracts?
The courts have given legal expression to the new expectations of both employers and employees.
What is an important implied term?
The implied term of mutual trust and confidence: ‘The employer shall not, without reasonable and proper cause, conduct itself in a manner calculated as likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.’
What are some of the fundamental aspects to the implied term of mutual trust and confidence?
- Aims to set a minimum standard of conduct below which the employer should not fall.
- Mark Freedland: ‘undoubtedly the most powerful engine of movement in the modern law of employment contracts.’
Which case confirmed the existence of the implied term of mutual trust and confidence?
Mahmoud and Malik v Bank of Credit and Commercial International SA (1998)
Name some abuses of managerial power that may fall under the gamut of mutual trust and confidence?
Victimisation, inequitable treatment, harassment, bullying, oppressive demands, disrespectful treatment, harsh and foul language, deceit etc.
How do the courts assess whether there has been a break down of mutual trust and confidence?
Objectively: see if employer’s conduct was so serious; bearing in mind the conduct may have had ‘reasonable and proper cause’ in the circumstances.
What has Lord Nicholls invoked in a pair of cases?
The language of good faith.
Eastwood v Magnox Electric plc (2004): ‘…an employer must act responsibly and in good faith.’
Reflects the idea that an employer has broken the psychological contract under which the employee believed he or she worked.
Name another implied term.
An obligation not to act arbitrarily, capriciously or irrationally - Mallone v BPB Industries plc (2002)
What is meant, on the employee side, that there should be performance in good faith?
Employee’s implied duties have evolved beyond a duty to obey lawful instructions. Employer can enforce an expectation that the employee will do more than perform the tasks listed in the contract.
What did Secretary of State for Employment v ASLEF (No 2) (1972) show?
‘Work to rule’ strike constituted breaches of contracts of employment and ordered a ballot to be held. Lord Denning found that it was an implied term that an employee must not wilfully obstruct his employer’s business.
What does BT v Ticehurst (1992) show?
Support to the idea that the employee has to act in good faith. It was argued here that Mrs Ticehurst had been in breach of contract by withdrawing goodwill. It was not necessary for the employer to demonstrate any particular harm caused to its interests.
