#3637 - Employee Duties - Labour Law

Duties of obedience, co-operation and care

The employee’s obligations of obedience, co-operation and care take the form of terms implied into the contract by the common law. The potential scope of these duties is very wide, but in practice they will tend to be limited by the express terms of the contract and by those implied from custom and practice or collective agreements. The principal role of the common law is thus to fill in the gaps. This would have once been largely a question of granting legal expression to managerial prerogative, but the duty of co-operation in particular is now acknowledged to be reciprocal in nature and to impose certain obligations upon the employer. This development in the law has come to be associated with the concept of implied term of mutual trust and confidence.

The duty of obedience

The employee owes an implied obligation to obey lawful and reasonable orders of the employer: this is a “conditional essential to the contract of service (Lord Evershed in Laws).

What is reasonable depends in part upon the substance of the other terms of the contract, and the employee’s job title and description, rank and professional status may also be relevant factors.

“One act of disobedience can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract (Laws per Lord Evershed).

Warner (1978) – employer entitled to dismiss an employee who had taken time off work without permission to look after her young son who had just been diagnosed as suffering from diabetes and was having difficulty administering the necessary treatment of insulin (the employer’s power to give orders in this type of situation would now be subject to the statutory right of an employee to take time off for urgent family-related reasons.

An employee is always entitled to disobey an unlawful order (Gregory).

Turner v Mason – in context of health and safety threats, entitled to disobey an unlawful order includes an order to direct a servant to continue where she is in danger of violence to her person or of infectious disease.

Bouzourou – there must be an immediately threatening danger by violence or disease to the person of the servant before an order to remain in the zone of danger can be held to be unlawful.

It is not clear why the danger should be immediately threatening and this decision may no longer be particularly persuasive. In principle, there would seem to be no reason why, if very long working hours could be shown to be likely to induce a stress-related illness, the employee should not be entitled to disobey an order to carry on working beyond the point of danger, even if the impact upon their health was cumulative rather than immediate.

Barber v RJB Mining – the courts have accepted that statutory health and safety standards may circumscribe the employer’s common law right to give orders which may have the effect of endangering the employee. High Court issued a declaration to the effect that employees protected by the statutory right not to work more than 48 hours per week over a specified reference period were entitled to refuse to work excessive hours which would have taken their working time over the threshold.

It is also arguable that the duty of obedience is now circumscribed by Convention rights under HRA 1998; hence if the employer issued an instruction which amounted to breach of such a right, such as the right to respect for private life under Art 8 ECHR, special justification might be needed.

While Barber suggests that an employee is entitled to refuse to obey an unlawful order, in the sense of an order which would result in the breach of a statutory obligation imposed upon the employer for the protection of the employee, Macari rules that this principle does not extend so far as to allow the employee to withhold performance under the contract of employment in circumstances where the employer is acting in breach of the Malik term of mutual trust and confidence. Although there are dicta suggesting that an employee might be entitled to refuse to obey a specific order made in bad faith by his employer (Lord Caplan) – in the sense of an order which would have the effect of harming the employee in a significant way – the court ruled that an employee who refuses to obey an order which is, in itself, both reasonable and lawful, thereby commits a repudiatory breach of contract, even if the employer is in breach of the duty to maintain trust and confidence in some other respect.

The effect of these decisions is that if the employer commits a generalised breach of the implied duty of co-operation, the employee has the option of terminating the contract and claiming appropriate relief , or of maintaining the contract. If the latter route is chosen, the employee is not entitled to withhold all performance from the employer. The right to withhold performance arises only in respect of those obligations of the employee which correspond to the employer’s own breach. Thus it is only if the employer issues a specific order which would result in unlawfulness or would significantly harm the employee that the employee has the right to maintain the employment relationship while also refusing to obey the order in question.

The implied term of mutual trust and confidence

Duty of co-operation in contract law– obligation which is implied into a contract to require each party to avoid taking steps to obstruct the other’s performance (Shirlaw). In the context of the contract of employment it has been transformed into an affirmative obligation on the part of the employee to use his best efforts to ensure the efficient running of the enterprise. More recently, it has become associated with an obligation on the part of both parties not to break the mutual trust and confidence on which the relationship rests.

Obligations of the employee

SoS for Employment v ASLEF (NO. 2) – idea of employee’s affirmative duty of co-operation illustrated. Whether limited industrial action taken by the rail unions involved employees in committing breaches of contract? Unions argued that the employees were performing the contract by sticking to the letter of the work rules book issued by the employer. In CoA held that breaches of contract had taken place. Lord Denning MR argued that the lack of good faith with which performance was carried out rendered it a breach of contract, and added that “there are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done. So here it is the wilful disruption which is the breach”.

Roskill LJ thought that “questions of intent are usually irrelevant in determining whether or not there has been a breach of contract.” Instead, Roskill LJ referred to the presence of an implied term that the employee would not seek so to interpret and act upon the rules as to disrupt the railway system. Buckley LJ spoke of an implied term “that within the terms of the contract the employee must serve the employer faithfully with a view to promoting those commercial interests for which he is employed.”

A crucial step in ASLEF (No.2) was the classification of the rule book: it did not establish contract terms, but simply reflect managerial prerogative. Although this creates a space within which the employer can dispense with contractual consent in setting or altering the form in which performance shall take place, the Court was also at pains to point out that this power is limited by the express contract terms: “it does not meant that the employer could require a man to do anything which lay outside his obligations under the contract, such as work excess hours of work or to work an unsafe system of work” (Buckley LJ).

The gap-filling function of the implied terms will grow in importance if the express terms are narrowly construed. In Sim, it was held that schoolteachers who withdrew co-operation in the course of industrial action by refusing to cover for sick and absent colleagues were acting in breach of contract. Their terms and conditions of employment were laid down in a national-level collective agreement and whose terms were embodied in the “Burgundy Book”. But, Scott J held “these provisions, although in many respects detailed and comprehensive, do not attempt to detail the obligations imposed on teachers by their respective contracts of service.” The contracts were silent as to the extent of the teachers’ obligations as teachers; in this case it was appropriate for the court to imply a term on the basis of professional standard set by both the profession itself and by public expectation.

Ticehurst v BT – managerial employee was held to be subject to the duty of co-operation to exercise “her judgement and discretion in giving instructions to others and in supervising their work...faithfully in the interests of the employers”. Her failaure to sign an undertaking to work normally was held to amount to a breach of contract: a breach is committed “when the employee does an act, or omits to do an act, which it would be within her contract and the discretion allowed to her not to do, or to do, as the case may be, and the employee so acts or omits to do the act, not in honest exercise of choice or discretion for the faithful performance of her work but in an order to disrupt the employer’s business”.

The most significant aspect of this case is that the only source of thebreach was the employee’s refusal to sign the undertaking. The decision effectively adopts Lord Denning’s view in ASLEF (no 2) that motive...