Implied Duties of Employers Flashcards
The common law recognises that employers hold certain implied duties to employees.
Failure to follow these duties may be a breach of contract, entitling the employee to sue for wrongful dismissal.
The following are implied duties:
- the duty to provide work
- the duty to pay wages
- the duty to provide reasonable care
- the duty of mutual trust and confidence
- the duty to provide proper information to employees
- the duty to provide accurate references
The duty to provide work
As a general rule, there is no duty on an employer to provide work.
Well established exceptions to the rules are as follows:
- Where failure to provide work can lead to a loss of reputation or publicity - such as giving a leading actress a minor role.
- Where failure to provide work leads to a reduction in the employees actual or potential earnings, such as through commission.
- Contracts with skilled workers to pay a salary and to provide a reasonable amount of work to maintain or develop skills.
If an employer is under an obligation to provide work and does not do so, this amounts to a breach of contract.
The duty to pay wages
There is an implied duty to pay wages, as long as the employee is ready and able to work (Way v Latilla (1937)
The duty to provide reasonable care
An employer owes a duty to protect the health and safety of its employees.
Under the common law, the employer must provide:
- a safely operating system of work
- safe tools, plant and materials
- adequate supervision
- trained and efficient personnel
The duty to provide reasonable care includes
- Safe operating system of work
In Johnstone v Bloomsbury Health Authority (1991), it was held that a health authority’s contracted right to require a junior doctor to work up to 48 hours overtime each week, was a power that must be exercised in such a way as not to cause foreseeable damage to the employee’s health.
The duty to provide reasonable care includes
- Safe tools, plant and materials
The employer must provide equipment which is periodically checked and maintained. The employer must also keep abreast of current developments in relation to health and safety.
In Crookall v Vickers Armstrong (1955), the employer provided masks, but the employees disliked wearing them. One employee became ill and sued. The employer was found liable for failing to do enough to ensure the masks were worn.
The duty to provide reasonable care includes
- Duty to provide adequate supervision
In Barber v Somerset County Council (2004), the House of Lords held the best principle is:
“the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know”
The duty to provide reasonable care includes
- Duty to provide trained and efficient personnel
If an employee is injured by the practical joke of another, the employer is liable if it knew that the person responsible was prone to such horseplay.
Mutual trust and Confidence
One of the most important duties of an employer that is IMPLIED into every contract is that of mutual trust and confidence.
Employers must not conduct themselves in a way that will destroy the relationship of trust between employer and employee.
Mutual trust and Confidence - Employers obligations
What conduct could breach the implied term of an employer’s duty to provide mutual trust and confidence?
- Harassment of employees
- Failing to provide the same benefits as other employees
- Undermining their authority in front of their subordinates
The conduct must be sufficiently serious to undermine the relationship between employer and employee.
One way of breaching the duty of trust and confidence is publicly reprimanding the employee.
Which case law covers this? (Oil Industry)
Ogilvie v Neyrfor-Weir Ltd (2003)
A senior executive in the oil industry had been expecting to attend his sister-in-law’s engagement over a bank holiday weekend. He was told by his employer he would need to go abroad over that weekend and objected to it.
His superior, whose door was open, called him a “fucking cunt”.
Mr Ogilvie resigned and claimed constructive dismissal.
The EAT held that the language used was not acceptable in the boardroom and upheld his claim.
The duty to provide accurate references
There is no general duty on an employer to provide a reference.
In Spring v Guardian Assurance plc (1994), the House of Lords held that a person giving a reference owes a duty of care, so that an employee can claim damages for negligent misstatement if they incur a loss as a result.
