(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. |
