Previously, we discussed the duties of the employer but did not have the space to discuss the other side of the coin- the duties of the employee. Similarly to the duties of the employer, most of these duties are implied, unless the duty is stated directly in the contract of employment. There are many duties that an employee is expected to follow, which we will discuss in this blog post, so you can be aware of them as an employer or employee.
Duty of Obedience
Before contracts of employment existed, there has always existed the idea that a master hires a servant and expected them to follow commands. In modern employment law, that expectation that the employee will serve their employer continues, and the employee is expected to carry out any lawful tasks that their employer gives them. Lawful being an important keyword in this context, it does not only mean in the bounds of the law (such as the employee is not expected to commit crimes if told to) but also that a ‘lawful’ order will be something that is reasonable in their terms of employment. What this means is the employer cannot give orders outside the scope of employment, such as by demanding changes to anything of a personal nature to the employee (such as regulating hair length) nor can they regulate an employee’s out-of-work activities (such as the hobbies they do on their own time). There are however some cases where there can be exceptions to these rules which make orders of a personal or out-of-work nature become acceptable, for example a maximum hair length may be required in a factory where everyone is constantly around and operating machines which the employee’s hair could catch on and cause harm.
This principle that the employer cannot give ‘unlawful’ orders extends to the fact that they cannot order an employee to agree to a change of their contract, meaning if someone is not contractually bound to work overtime the employer cannot force the person to work overtime.
Questions of obedience often come up in the law of dismissal because refusal to follow a lawful order can be used to justify summary dismissal. During issues of statutory action for unfair dismissal it is always important that questions of fairness are considered by observing all aspects of the case, not just whether the employee was technically in breach of their contract. This means that, while an employer can summarily dismiss someone for gross misconduct, a single disobedient act is often not enough to make the dismissal fair. Due to the fact that an employee has a right to ignore an illegal order or one that puts them in direct danger, any dismissal of the employee for refusing to carry out the order is unlawful.
Adaption to new methods
Constant developments in technology and techniques mean that the workplace is not a static working environment, but contracts are static. This means that disputes may occur if an employee refuses to accept a new way of working. If an employee does not wish to accept any form of change, they must argue that the changes are sufficiently fundamental that they fall outside the scope of their existing contract of employment. It is alternatively possible that the employer can foresee possible future changes and write flexibility into the contract or add express contractual authority to make any changes to practice in order to be prepared to make any practice changes when they become viable without receiving repercussion for altering the employees job role.
In case law, courts often give a lot of latitude towards employers to alter work practices without being considered to have changed the job role itself. An example of a case like this would be the judgment of Walton J in the case of Cresswell v Board of Inland Revenue, in the case Inland Revenue officers and clerks refused to move to using a new computer system for PAYE administration after their employers could not guarantee there would not be redundancies. The employees argued that making them operate computers was a breach of their contracts, but the courts held that a change to using computers did not fall outside their contractual duties of tax gathering and that employees should expect that they must occasionally adapt to new methods of carrying out their job role.
Duty of Care
Similarly to how the employer has a duty to exercise care, so too does the employee. The employee has an implied duty to handle their given equipment with care and use it safely and competently as to not cause damage to the equipment or harm to others. Issues arise when an employee fails their duty of care and causes damage to a third party or their goods, in these cases, the third party could sue the employer for damages (because the employer is vicariously liable for the employee). After the employer has been sued, they can attempt to take legal action against their employee for indemnity.
The employers cause for action can arise in two ways, they can sue the employee for a breach of contract, or they can sue them in tort. Tort is a branch of law which deals with civil liability and breaches of obligations imposed by the law. The most common kind of tort is the tort of negligence, which imposes an obligation not to breach the duty of care- which is what we are currently discussing.
When suing an employee for a breach of contract the employer must prove that the responsibility lies purely on the employee and that none lies on themselves, for example if the employer gave the employee a task beyond the employee’s level of competence. A case of this would be Jones v Manchester Corpn, where an inexperienced doctor caused harm to a patient. The patient successfully sued the hospital board for damages but when the hospital board attempted to get indemnity from the inexperienced doctor, the Court of Appeal failed to allow it in a majority decision because part of the fault fell on the hospital board for failing to provide adequate supervision to the doctor.
Duty of Fidelity
The duty of fidelity, or faithful service, is one of the most expansive duties of an employee, with various parts and complexities. The duty of fidelity means that the employee should remain faithful to their employer, meaning the employee should not do any acts which would be detrimental to their employer’s interests, such as misusing their employer’s assets for personal gain. A particularly important aspect of faithfulness is that the employee should not put themself in a position where their own interests and the interests of the employer conflict with each other, as this will lead to a breach of their duty of fidelity.
While it may so far seem like the duty of fidelity is far reaching, it is important to note that it is not a ‘uberrimae fidei’, which means that it does not require excessively complete disclosure all information to the employer. This means that an employee is not under a duty to declare all facts which may prove inimical to the employer, such as the employees own unsavoury background or previous misconduct. While the employee is under no obligation to declare facts, it is disallowed for them to actively mislead and lie to the employer on such matters. This may also extend to a requirement for the employee to reveal their misconduct that has been fraudulently concealed and a duty to disclose the misconduct of other employees (even if it means having to disclose misconduct of your own).
On a different point is the question into whether working for or as a competitor to your employer (or ex-employer) is a breach of the duty of fidelity. Under normal circumstances, courts attempt to restrict a person’s free time as little as possible, meaning that employees can take on additional jobs in their own spare time if they desire. The court will only attempt to interfere if the use of their skills and knowledge are particularly detrimental to the employer, for example cases where the employee works for a second company which is in direct competition with their first employer. In cases such as this, the court may impose restrictions, but this would only be during employment.
Everything changes however if the employee misuses or discloses confidential information, in which case there may be grounds to terminate their employment. Misuse of information would be the employee using trade secrets gained during their employment (and illicitly gained) to detriment their employer by providing information to competition or setting up their own business in competition. In such a case, the employee would be in breach of their implied duty of good faith. For a company’s trade secrets to be protected in law, there must be a genuine level of secrecy attached to that information, meaning it does not apply to regular skills or knowledge that the employee may have gained during employment.
Overall, the employee has four main duties, the duty of obedience, to adapt to change, of safety and of fidelity. These duties are important to understand as both and employer and employee, so you know what legal protections do and do not apply in your situation. The duties essentially boil down to the fact that the employee should follow the tasks of their job role, be open to changes in how their role operates, to handle their tasks with care and to be faithful with the trust the employer puts on them.