EmployER Duties

Question 1

What is the general structure/focal points of the answer? (EmployER Duties)

Answer 1

• Draw the line existing between duties owed by an empoyer and by an employee.
• Indemnifying the employee
• Paying Wages
• Treat with Respect
• Expanded discussion on duty to provide work
• Duty of safety as defined in relevant cases
• Duty to provide safe system of work
• Reciprocal duty of good faith

Question 2

What are the points to remember within indemnifying the employee?

Answer 2

• What it is
• Gross misconduct
• (Reynolds v Royal Mail Group Ltd 2017)

Question 3

What are the main points to remember within paying wages?

Answer 3

• What it involves
• In Scotland, contract is valid even if devoid of consideration
• Although based on Thomson v Thomson’s Trustees 1868, rebuttable presumption that where servies provided expectation of remuneration
• Turner v Sawdon & Co 1901 - what was stated
• Collier v Sunday Referee Publishing Co Ltd. 1940 - provides context - cook and meals
• Present day statute - what does ERA 1996 say about deductions?

Question 4

When might gross misconduct occur in Indemnifying an employee?

Answer 4

When an employee submits an overly exaggerated or false expense claim

Question 5

What is indemnifying the employee?

Answer 5

The compensation of an employee who has incurred expenses while ‘properly’ carrying out their duties within the employment contract

Question 6

What happened in Turner v Sawdon & Co 1901/Development points?

Answer 6

It was stated that an employer is under duty to pay wages in return for the employee services. The employee however, will be in no position to complain in situations where the employer pays wages but does not provide any work for the employee to undertake.

Question 7

What does ERA 1996 State in regard to pay deductions?

Answer 7

• Employer must not make any unauthorised deductions from the wages of any worker employed by him or to receive any payments with the exception of three circumstances;
• the deduction is authorised by a statutory provision such as pay as you earn;
• the deduction is authorised in the employee’s contract such as pension contribution;
• or the worker has agreed to the deduction, in writing and in advance.

Question 8

What are the main points to remember within treat with respect?

Answer 8

• If employer fails to do this, may lead to breakdown of employment relationship
• In the case of the above, employee may feel only option is resignation
• McCormack v Hamilton Academical Football Club Ltd 2010

Question 9

What are the main points to remember for expanded discussion on duty to provide work?

Answer 9

• Long debated duty
• Due to important consideration of piece work scenarios
• Brief piece work definiton
• Reference back to Turner v Sawdon & Co 1901
• Controversial as:
• Traditionally in common law employer not obliged to provide work
• Obligation might be triggered due to effects of inactivity on employee’s skills or expectationt to remain updated in their knowledge (William Hill Organisation Ltd v Tucker)
• Or where failure to provide work may result in loss of reputation or publicity (Herbert Clayton & Jack Waller Ltd v Oliver)

Question 10

Main points to remember in duty of safety as defined in relevant cases?

Answer 10

• Umbrella of duties
• Duty to appoint reasonably competent employees
• Putting in place reasonably safe working systems
• Provision of safe equipment/materials
• Result of Wilson’s & Clyde Coal Ltd v English 1939

Question 11

What happened in Wilson’s & Clyde Coal Ltd 1939?

Answer 11

Held that a coal worker was injured in an incident due to employer’s failure to take reasonable care for the safety of the employee.

Question 12

What are the main point to remember for providing a safe system of work?

Answer 12

• What it involves
• Walker v Northumberland County Council 1995
• Case illustrates why last point is especially important in the case of inexperienced employees

Question 13

What does the providing a safe system of work involve?

Answer 13

Ensuring that;
- Work is properly and safely organised,
- Adequate numbers of workers are on site to carry out the job and that
- There are competent supervisors and managers in place to oversee the workers.

Question 14

What are the main poins to remember in the reciprocal duty of good faith?

Answer 14

• Malik v BCCI SA 1997 exemplifies mutual trust
• What the idea of good faith involves

Question 15

What happened in Malik v BCCI SA 1997?

Answer 15

The UK Supreme Court, then House of Lords, awarded damages to a worker who was unable to find a job because the bank he had previously worked for gained reputation around the world for unethical business practises

Question 16

What does the idea of good faith constitute?

Answer 16

The idea of trust between employee and employer to inform each other where necessary of significant things that if the other party were to discover independently, there may be problems.

Question 17

What does paying wages involve?

Answer 17

In return for performance of his duties as determined via the contract of employment, the employee is entitled to be remunerated
(paid) by the employer.

Question 18

START BOTH COMMON LAW ANSWERS WITH

Answer 18

Typically, the entrance of two parties into a contract of employment (assuming parties are employer and employee) asserts that through what is referred to as common law, both parties have duties owed to the other to ensure employment relationship does not deteriorate. These duties differ slightly between employer and employee. This answer will outline the duties owed by … to … and discuss them, illustrating these ideas with reference to relevant case and statute law where necessary.