A more recent version of these Employee Duties notes – written by Oxford students – is available here.
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Duties of obedience, co-operation and care The employee's obligatons of obedience, co-operaton and care take the form of terms implied into the contract by the common law. The potental scope of these dutes is very wide, but in practce they will tend to be limited by the express terms of the contract and by those implied from custom and practce or collectve agreements. The principal role of the common law is thus to fll in the gaps. This would have once been largely a queston of grantng legal expression to managerial prerogatve, but the duty of co-operaton in partcular is now acknowledged to be reciprocal in nature and to impose certain obligatons upon the employer. This development in the law has come to be associated with the concept of implied term of mutual trust and confdence. The duty of obedience The employee owes an implied obligaton to obey lawful and reasonable orders of the employer: this is a "conditonal essental 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 ttle and descripton, rank and professional status may also be relevant factors. "One act of disobedience can justfy dismissal only if it is of a nature which goes to show (in efect) that the servant is repudiatng the contract (Laws per Lord Evershed). Warner (1978) - employer enttled to dismiss an employee who had taken tme of work without permission to look afer her young son who had just been diagnosed as sufering from diabetes and was having difculty administering the necessary treatment of insulin (the employer's power to give orders in this type of situaton would now be subject to the statutory right of an employee to take tme of for urgent family-related reasons. An employee is always enttled to disobey an unlawful order (Gregory). Turner v Mason - in context of health and safety threats, enttled to disobey an unlawful order includes an order to direct a servant to contnue where she is in danger of violence to her person or of infectous 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 partcularly 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 enttled to disobey an order to carry on working beyond the point of danger, even if the impact upon their health was cumulatve 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 efect of endangering the employee. High Court issued a declaraton to the efect that employees protected by the statutory right not to work more than 48 hours per week over a specifed reference period
were enttled to refuse to work excessive hours which would have taken their working tme over the threshold. It is also arguable that the duty of obedience is now circumscribed by Conventon rights under HRA 1998; hence if the employer issued an instructon which amounted to breach of such a right, such as the right to respect for private life under Art 8 ECHR, special justfcaton might be needed. While Barber suggests that an employee is enttled to refuse to obey an unlawful order, in the sense of an order which would result in the breach of a statutory obligaton imposed upon the employer for the protecton 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 actng in breach of the Malik term of mutual trust and confdence. Although there are dicta suggestng that an employee might be enttled to refuse to obey a specifc order made in bad faith by his employer (Lord Caplan) - in the sense of an order which would have the efect of harming the employee in a signifcant 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 confdence in some other respect. The efect of these decisions is that if the employer commits a generalised breach of the implied duty of co-operaton, the employee has the opton of terminatng the contract and claiming appropriate relief , or of maintaining the contract. If the later route is chosen, the employee is not enttled to withhold all performance from the employer. The right to withhold performance arises only in respect of those obligatons of the employee which correspond to the employer's own breach. Thus it is only if the employer issues a specifc order which would result in unlawfulness or would signifcantly harm the employee that the employee has the right to maintain the employment relatonship while also refusing to obey the order in queston. The implied term of mutual trust and confidence Duty of co-operaton in contract law- obligaton 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 afrmatve obligaton on the part of the employee to use his best eforts to ensure the efcient running of the enterprise. More recently, it has become associated with an obligaton on the part of both partes not to break the mutual trust and confdence on which the relatonship rests. Obligations of the employee SoS for Employment v ASLEF (NO. 2) - idea of employee's afrmatve duty of co-operaton illustrated. Whether limited industrial acton taken by the rail unions involved employees in commitng breaches of contract? Unions argued that the employees were performing the contract by stcking to the leter 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 motve or object with which it is done. So here it is the wilful disrupton which is the breach". Roskill LJ thought that "questons 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
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