Lecture notes
lecture notes for employment law
- Module
- Employment Law
- Institution
- Nottingham Trent University (NTU)
Implied employer duties word document
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LLB DLImplied Duties of the Employer
- Duties that have been applied into common law into all contracts of
employment - are not terms that have been expressly agreed by the
parties – they are there because found to be there by our courts using
tests
• Mutual Trust and Confidence - Remember we have already looked at
this important mutual (a duty on both the employer and the employee)
implied duty – See last lecture.
- `you do for me, I do for you`
• We are now looking at the other implied duties of the employer.
• Duty to pay wages?
Yes - Nearly always an express duty but would in any event be an implied
duty if it has not been expressed. A fundamental duty, going to the heart
of the employment relationship.
• Duty to provide work?
There is no general duty to provide work.
As Asquith J said in Collier v Sunday Referee Publishing Company Ltd
[1940] 2 KB 647:
"provided I pay my cook her wages regularly, she cannot complain if I
choose to take any or all of my meals out."
- No obligation on the employer to provide work
- Exceptions where an implied duty to provide work has been found to
exist.
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, • Devonald v Rosser & Sons [1906] 2 KB 728) – Employee paid on the
basis of work done (piece work)
• Marbe v George Edwards (Daly’s Theatre) Ltd [1928] 1 KB 269 –
Reputational capital.
• Duty to provide a reference?
• Cox v Sun Alliance Life Ltd [2001] EWCA Civ 649 - There is no obligation,
on an employer to give a reference for a former employee.
• Spring v Guardian Assurance plc [1994] 3 All ER 129 - House of Lords that
there can be liability in negligence for a reference. Obviously bad
references can still be given but they must be given with reasonable care.
• Bartholomew v London Borough of Hackney [1999] IRLR 246 - The
reference must be read as a whole so that a series of true statements
which nevertheless mislead do not constitute a fair reference.
• Jackson v Liverpool City Council (2011) - Reference was provided by the
employer which referred to record keeping issues with the employee but
stated that these issues had never been investigated as to whether they
were true and accurate. The Court of Appeal felt that the employer could
not be criticised for referring to these allegations as it was made clear in
the reference that the allegations where untested and unsubstantiated.
• Duty to provide a grievance procedure
• The case of W.A. Goold (Pearmark) Ltd v McConnell [1995] IRLR 516
established this "new" duty. The EAT found this on the basis of s. 1 ERA
which states that employers, in the written statement of employment
particulars, should specify the way in which an employee may seek
redress of any employment grievance. The EAT concludes that this must
imply a term that a reasonable opportunity to obtain redress must be
provided.
• Bracebridge Engineering Ltd v. Darby [1990] I.R.L.R. 3 – A failure to hear
a sexual harassment complaint was found to be a breach of the implied
duty of mutual trust and confidence.
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