In the context of contracts of employment explain the common law duties imposed on:（a) em

正确答案：

(a) Although a contract of employment need not be in writing, the employer must provide the employee with particulars of the
main terms of the contract in writing as required by the Employment Rights Act 1996. Such express terms are agreed upon
by the employer and employee on entering into the contract of employment. However, in the absence of stated terms the law
will impose duties on both employer and employee. Such implied terms have to be read subject to any express terms to the
contrary. Although where the implied term is necessary to give effi cacy to the contract, the implied term will take precedence
over the express term (Johnstone v Bloomsbury Health Authority (1991)).
Duties of the employer
(i) To provide work
The employer normally will be expected to provide work for the employee and where the employee is skilled and
needs practice to maintain those skills, there may be an obligation to provide a reasonable amount of work Langston v
Amalgamated Union of Engineering Workers (1974). No breach of this implied duty will occur so long as the employee
continues to be paid even though there may be no work available.
(ii) To pay wages
Normally the rate of pay is expressly stated in the contract of employment. However, in the absence of an express
provision, the law will impose the duty to pay a reasonable remuneration for the work done. Following from (i) above, an
employer must pay employees their wages even if there is no work available, although an express term to the contrary may be included in the contract of employment. Where workers, in the pursuit of an industrial dispute, offer only part
performance by working to rule or adopting a ‘go-slow’ policy, the employer can refuse to accept such part performance
and can refuse to make any payment for work done.
(iii) To indemnify the employee
Where the employee in the course of his or her employment incurs any legal liability or necessary expenses on behalf of
the employer, the employee is entitled to be indemnifi ed or reimbursed.
(iv) Mutual respect
The employment relationship is assumed to be based on mutuality of respect, trust and confi dence and the employer must
not act in a way calculated to damage such mutuality. As will be seen this is a reciprocal relationship, but it is clear that
employers cannot treat their employees in an abusive manner (Isle of Wight Tourist Board v Coombes (1976)) and must
be prepared to address any grievances they might have (WA Goold (Pearmak) Ltd v McConnell & Another (1995)).
(v) To provide a safe system of work
At common law the employer is required to take reasonable care for the health and safety of his employees. Failure to
comply will render the employer liable for an action in negligence. The duty extends to the provision of competent fellow
employees, safe plant and equipment, a safe place of work and a safe system of work. If the employer has taken all
reasonable steps to comply with the duty of care then they will not be liable for any injury sustained (Latimer v AEC Ltd
(1953)).
(b) There are a number of implied duties imposed on employees, which may all be understood as deriving from their relationship
of trust and confi dence with their employer and the consequential duty of loyalty and faithful service that derives from that
relationship. The specifi c duties may be cited as:

(i) to act faithfully
This is the fundamental duty and it covers such aspects of confi dentially, i.e. not passing on information derived from
one’s employment to outsiders and not competing with the employer either directly or indirectly.
The courts are reluctant to accept that what workers do in their spare time should be of any concern to their employer
(Nova Plastics Ltd v Froggett (1982)). However, sometimes an employer’s interests may be harmed by an employee’s
spare-time work if this involved direct competition with the employer’s business (Hivac Ltd v Park Royal Scientifi c
Instruments Ltd (1946)).
An employee may not do anything while still employed, which is in breach of the duty to act faithfully. However, it is
perfectly lawful for ex-employees to canvass customers of their former employer after leaving service. Moreover, they
are entitled to make use of any knowledge and skills acquired while in the former employer’s business, apart from such
information which can be classifi ed as a trade secret. In this sense the implied duty of confi dentiality for ex-employees is
narrower than in the case of an existing employee (Faccenda Chicken Ltd v Fowler (1986)).
(ii) to obey reasonable orders
Employees must obey any reasonable and lawful instruction given to them by their employer. Whether any instruction
fulfi ls these criteria is a matter of fact in each instance. The classic case in this area is Pepper v Webb (1969) in which
a gardener not only indicated that he was not willing to follow an instruction but actually swore at his employer. In a
subsequent action it was held that as the order was both lawful and reasonable the gardener had breached his implied
duty.
(iii) to use skill and care
Should an employee not exercise the level of skill and care that may reasonably be expected, then they will not only
be liable to dismissal, but they may also lose the protection of the employer’s duty to indemnify them for losses (see
part (a) above), and be made personally liable for claims for compensation. The classic case in this instance is Lister v
Romford Ice and Cold Storage Ltd (1957) in which an employee lorry driver, rather than his employer, was held liable to
compensate a fellow worker, due to his gross negligence in driving his lorry, which was held to breach his implied duty
of skill and care.
(iv) not to take bribes or make a secret profi t
This duty almost goes without saying, as an example of the general duty of good faith, but it covers the situation where
an employee has received money or gifts from customers or clients. In this instance the classic case is Boston Deep Sea
Fishing Ice Co v Ansell (1888) in which a managing director of a company was held to have been properly dismissed for
having taken money as commission from the company’s suppliers for orders he placed with them.