CHAPTER 3 Implied terms of law

1. CHAPTER 3 Implied terms of law

2. Implied terms of law • Some terms may be implied into all contracts of employment. This means that some obligations must exist between the parties irrespective of the express terms of the contract.

3. Implied terms of law • The law regards employers and employees as having certain obligations to each other. • The implied obligations arise out of long-established common-law principles and more recent statutory intervention in the employment relationship.

4. Implied terms of law THE DUTIES OF THE EMPLOYER INCLUDE:

5. Implied terms of law • Paying wages if an employee is available for work, and not making unlawful deductions • This is normally dealt with by an express term. The law does not leave the parties entirely free to determine the amount of remuneration payable – for example, in the application of the national minimum wage or if an equality clause operates.

6. Implied terms of law • Providing work in circumstances where a lack of work will affect an employee’s earnings, reputation or skills • Employers are generally not obliged to provide work, and most employees who receive their full contractual remuneration cannot complain if they are left idle. However, in certain circumstances the failure to provide work may amount to a breach of contract.

7. Implied terms of law • Co-operating with the employee and preserving the mutual trust and confidence upon which this co-operation depends • One effect of the statutory unfair dismissal provisions is that courts have displayed a greater willingness to accept that employers have a positive duty to ensure that the purposes of the contract are achieved. Thus employers must not destroy the mutual trust and confidence upon which co-operation is built without reasonable and proper cause.

8. Implied terms of law • Taking reasonable care of the employee by providing a safe working environment and safe working practices • In addition to this duty implied by law, there are a number of key statutes in the area of health and safety.

9. Implied terms of law • Taking reasonable care with regard to references • An employer has a duty to take reasonable care in compiling a reference by ensuring the accuracy of the information upon which it is based. The duty is to provide a reference which is in substance true, accurate and fair, and this will involve making a reasonable enquiry into the factual basis of any statements made.

10. Implied terms of law THE DUTIES OF THE EMPLOYEE INCLUDE:

11. Implied terms of law • Co-operating with the employer and obeying lawful and reasonable instructions • – This is the duty to obey lawful and reasonable orders and the duty not to impede the employer’s business. It means that employees are not required to comply with an order if to do so would break the law. It also means that employees are not obliged to accept orders which fall outside the scope of the contract.

12. Implied terms of law • Not damaging the employer’s business by competing with the employer in breach of a duty of fidelity • An injunction may be granted to prevent employees from working for competitors during their spare time if it can be shown that the employer’s business would be seriously damaged.

13. Implied terms of law • Not disclosing certain confidential information to competitors • Obligations are determined by the contract of employment and, in the absence of any express term, are the subject of implied terms which impose a duty of fidelity.

14. Implied terms of law • The extent of this duty varies according to the nature of the contract and would be broken if an employee copied a list of the employer’s customers for use after the employment ended, or deliberately memorised such a list. • The implied term, which imposes an obligation as to conduct after the employment has terminated, is more restricted than that imposed by the duty of fidelity. The obligation not to use or disclose information might cover secret processes of manufacture or designs, or any other information amounting to a trade secret.

15. Implied terms of law • Taking reasonable care and exercising reasonable skills in the performance of his or her contract • If employees do not do so, apart from any disciplinary action that may be taken against them, there is an implied duty to indemnify the employer in respect of the consequences of their negligence.