This article explains 3 key duties that an employer must be aware of throughout the employment relationship. They are implied terms of the contract which must be met, regardless of whether they are expressly stated in the contract of employment.
Duty of mutual trust and confidence
There is a duty on both the employer and the employee not to act in a manner that undermines the implied term of trust and confidence which allow the contract of employment to exist in the manner that is set out in the contract.
For an employer, breaches of this duty could include operating the business in an illegal or unethical manner, failing to follow an internal grievance procedure when a concern is raised, imposing disciplinary sanctions without a fair and thorough investigation and imposing detrimental changes to an employee’s working arrangements, such as shift patterns or locations.
Duty to provide work and pay
An employer owes their employees the duty to pay the agreed amount if the employee is available for work. As such, the employer must be careful if it is practice in the business to send employees home early (without pay) when work is completed. For example, if an employee is contracted to 8 hours per day and finishes their work half way through the day, the employee should not be sent home, unless they will still be paid. Instead, the employer should find suitable alternative work for them to do. If the employer does send the employee home early without pay, it is advisable that this agreement is put in writing, and signed acceptance of a reduction in hours and pay for that day is retained. Failure to do so may be deemed a breach of the duty to provide pay as demonstrated in Beveridge v KLM UK Ltd when an Employment Appeal Tribunal ruled that an employee who offers services to the employer is entitled to be paid.
Whilst many employers may believe it okay to not offer work to employees if they still provide the contractual pay, this is not always the case. In Collier v Sunday Referee Publish Co Ltd, the court recognised that there were exceptions when there was an obligation to provide work too and ruled that this would be the case where individuals earned their money from commission or where publicity was important, for example in the case of an actor.
Duty of Care
This duty is largely focussed on statutory Health and Safety requirements, particularly those found in the HASAWA 1974. In every employment contract, there is the implied duty of the employer to take all reasonable steps to provide and maintain safe working practices so as not to risk injury to the employee. There is also an implied duty to provide and maintain a safe working environment, which is reasonably suitable for employees to perform their contractual duties, as far as reasonably practicable.
However, the duty of care extends to mental health and well-being too, including the importance of identifying signs of stress which may risk an employee’s health. In Corr v IBC Ltd, the House of Lords contended that an employee’s suicide was the direct result of the deceased depression which had been caused at work and therefore the duty of care had not been upheld by the employer.
The duty of care has even been extended after the termination of the contract, to employees who have resigned. In Kidd v Axa Equity & Law Life Assurance Society plc, the High Court ruled that the duty of care could be breached when providing a reference for an employee if the information in the reference was misleading or the employer was negligent in providing references.
It is important for employers to remember their legal obligations to employees, not only with regards to what is written into the contract of employment but what is automatically implied by being an employer.
If you are an employer and would benefit from further information on implied terms and duties of the contract, please get in touch via our contact us page.
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