The implied duties of the employer are terms in contracts of employment which are not specifically stated but which still form an important part of the contract. While many of the duties we describe are often implied, they can be clearly set out in a contract to avoid any future troubles or miscommunications, however it is impossible to have a completely comprehensive contract which will mean that implied duties will always exist in any contract.
Duties of the Employer
To Pay Wages
The duty to pay wages is perhaps the most obvious duty that the employer has. As the employer, it is their duty to pay the agreed upon wages at the agreed upon intervals. Their wages must at least match the UK minimum wage. It is important to remember that National Minimum Wage will be increasing in April.
To Provide Work
General common law does not actually require the employer to provide work for the employee to do, there is only the obligation to pay wages, which means that so long as the employee is receiving payment it is not a breach of contract to not provide work. While this generally applies, it is not always the case since the law recognises that there are exceptions. A clear example of exceptions to this rule are any roles in which publicity is important, such as for actors or singers, and also people who are paid by piece work need to have work to do to earn their wage, which they need to survive.
To Exercise Care
The employer’s duty to exercise care is to provide health and safety to their employees. There are many aspects of providing adequate health and safety. The first major aspect is to provide employees with colleagues who are competent and safe, which means employing people who are able to handle risky tasks with the correct amount of care and who are not actively a danger to themselves and others. Failure to maintain safe staff may lead to an employee being able to walk out and claim to have been constructively dismissed since their needs of a safe working environment were not met.
The second duty of general care is that an employer should listen to the complaints of their employees and fix any issues to health and safety that they bring up, such as complaints of faulty appliances or unsafe practices. Failure to maintain safe working conditions in this way may mean that the employee can walk out and argue that they were constructively dismissed since the work environment was not safe enough for them to continue working there.
The third duty of general care is that the employer may be obligated to compensate an employee against expenses incurred by the employee during employment, such as defending legal proceedings that were not purely the fault of the employee and only collateral to their performance of their duties. There is no obligation to insure the employee’s activities to a greater extent than the law requires, however.
The duty of care does not apply to employees’ belongings which means that any loss of goods would apply to ordinary principles of tort if there was proximity between the employer and employee, rather than just an employment relationship per se.
To Provide References
If an employee or ex-employee requests a reference for an application, there is no implied duty to provide references, except in specific cases where their application requires a reference. When writing a reference, it is important that you are fair towards the (ex-)employee but that does not mean you have to give a positive reference, you are allowed to write a negative reference. The only issue is that you are not allowed to provide a negligently written reference, since the subject of the reference could sue for negligence. This means that you should take care in writing the reference and be honest, accurate and fair. Additionally, it does not need to be comprehensive, which means that the subject cannot insist that you put certain details in the reference.
Traditionally, references were confidential, which meant even if the subject suspected that there was any negligence they could not see or prove it. However, the Data Protection Act 1998 (and now 2018) changed that by allowing the subject to demand to see the reference (but only after it is in the hands of the recipient, meaning they cannot cherry pick and tailor their references to make them look better).
To Treat Employees with Respect
In employment law there is a restatement of implied duties of mutual respect between employers and employees. This is a vague duty which varies often depending on the circumstances, this could mean treating employees with a general positive courtesy or it could mean treating each other with a required degree of consideration and tolerance that is required to execute the contract. The obligation to treat the employee with respect means not acting in a manner which could seriously damage the relationship of trust between the employer and employee without a good cause.
To Provide a Reasonably Suitable Working Environment
Relating back to the issue of health and safety, the EAT implied that an implied term of employment is that the employer should be monitoring their employees so they can provide a working environment that is reasonably suitable for the employee, so they are able to carry out their contractual duties. Failure to properly provide a suitable working environment after the employee has constantly brought up the issue could lead to them walking out and arguing they were constructively dismissed.
To Inform and/or Advising Employees
The idea of a duty to inform and advise employees means that the employer has a duty to inform their employees of any valuable rights or important terms they have which they cannot reasonably be expected to already know about on their own. Despite this, there are many cases which suggest that an employer may not have such an obligation requiring them to inform their employees of their rights and terms, for example the case of University of Nottingham v Eyett, where it was held that the employer had no duty to inform the employee who was about to retire that his pension would be higher if he were to delay his retirement slightly.
To Uphold Confidentiality
Some legal cases have upheld the idea that employers do not have aright to divulge personal information about an employee (such as name and address) since that information is only to be kept for the purpose of maintaining an employer-employee relationship. Other cases have upheld that intercepting employee phone calls at work is a violation of conventional rights to respect people’s private lives. Currently, the Human Rights Act 1998 protects people in these cases however there are issues that arise from the fact that employers may wish to take actions to protect their interests, such as if they believe employees are misusing company assets (such as emails or devices) for personal or illegal reasons.
In cases such as this, the employer must be careful in order to minimise the risk of getting into trouble for breaches in confidentiality or human rights. Ways to do this would be to inform employees that there will be measures to monitor correspondence and communications. The employer should do their best to monitor the flow of communication and not the contents, meaning looking to see where they are sending emails, not looking at what they are saying in those emails.
The employer should also have a legitimate reason to justify their monitoring procedures. When setting up a monitoring system, the employer should attempt to use the least intrusive method available to them. The employer should make it clear to all employees what the monitoring will be and what the consequences will be for any misuse the monitoring finds. Finally, especially if the monitoring is intrusive in nature, the employee should be given adequate safeguards. Doing all of these helps to maintain a better employer-employee relationship since it will allow the employer to monitor the employee without the employee feeling as violated, and it means that if the employee is fired for misuse of company assets the now former employee would be less able to make a case that the employer violated their human rights.
Overall, there are many implied duties of the employer, but many of them do not have solid legal backing requiring they are upheld. Since all these duties are just implications in contracts, not clear terms or laws, there is little legal backing for many of them to say they are a mandatory requirement of the employer, just things people tend to expect an employer to do. It is important for any employer or future employer understand these duties so they can act on them however they see fit, rather than getting tripped up by suddenly learning about them in the future.
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