TOPIC 3

RIGHTS AND DUTIES/OBLIGATIONS OF

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 Introduction
Employment relationship sets certain rights and
obligations on parties.
Each party to a contract has an obligation to meet
his/her obligations in employment contract.
A breach of either party to a contract may entitle the
other party remedies available at common law or under
statutory law.

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 Employer’s rights
• The employer has the following rights;
▫ Right to receive equitable services from his/her
employee
▫ Right to protect confidential information relating to his
financial or business affairs
 This right is both common law and statutory. It is provided for
under s.101 of the ELRA and s.59 of LIA. See also the PSA,
2002 its Regulations and Scheme of 2003
▫ Right to form employers’ organizations or associations-
s.10 of ELRA

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Right to formulate workplace policies and workplace
practices
Right to see his lawful instructions or directives obeyed
by his employees
Right not to see unfavourable or unfair competition from
his own employees
Right to control the affairs of his business and selection
of employees

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 Duties of the employer
• Employer has the following duties to an employee;
▫ Duty of mutual trust and confidence.
 This basically is the duty that cuts across both parties to an
employment relationship.
 Both the employer and employee are expected not to act in
a manner which jeopardises an implied term of mutual trust
and confidence which enables their relationship to
continue.
 In the case of United Bank Ltd v Akhtar [1989] IRLR 507
an employee had a mobility clause in his contract of
employment which provided that he could be transferred to
any place in the UK.

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 The Bank, relying on that clause, asked the employee to be move
from Leeds to Birmingham with less than one week’s notice.
 The Court held that this amounted to a fundamental breach of the
implied term that employers will not conduct themselves in such
a manner that will harm or destroy the relationship of confidence
and trust between employer and employee.
• Duty to provide work
▫ It is upon the employer to provide the work to an
employee. The employee has no obligation to look on
what to do if the employer has not provided him what to
do.

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In the case of Beveridge v KLM UK Ltd [2000] IRLR
765 an employee informed her employer that, after a
long period of absence through sickness, she was fit to
return to work.
However, the employer refused to allow her to return
until their own doctor had certified her fitness to do so.
The process took six weeks, during which she was not
allowed to work and was not paid.
She then claimed that this amounted to an unathorised
deduction from her wages.

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The Employment Appeals Tribunal (UK) ruled that an
employee who offers services to her employer is entitled to
be paid unless there is an express provision of the contract
providing otherwise.
It has to be understood that so long as the employer
continues to pay the employee the agreed remuneration, it is
not a breach of contract if the employee is left sitting idle.
However, where for instance the employee’s wage depends
on work being provided by the employer, then failure on the
part of the employer to provide work will amount to a
breach of contract-Case of Faberlan v McKay and Fraser
[1920] WLD 24

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Duty to pay his employees
An employment contract is usually an exchange
agreement of labour or skills with a reasonable pay in
monentary value or in kind.
The duty to pay an employee is there regardless of
whether the employer has given the employee work to do
or not.
A mere fact that the employee has not been given work,
does not remove the right upon employee to have his
wage.

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An employer, for instance, may decide to keep certain
employees idle in order to stop them going to work for a
rival competitor.
This may be aimed at stopping the competitor from
taking advantage of the individual skills, abilities and
expertise. This period of idleness is what is termed as
‘garden leave’.
Nevertheless, the employer has duty to pay.

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 Duty of care
 The employer has several responsibilities towards an
employee. These include;
Implied duty to take all reasonable steps to provide
and maintain a safe system of work so as not to
expose the employee to unnecessary risks of
injury.
In the case of Wilsons and Clyde Coal Co Ltd v
English [1938] AC 57 (HL) the court stated that;
The master has duty to see his servants do not
suffer through his personal negligence such as
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Failure to provide proper and suitable plant;
Failure to select fit and competent servants;
Failure to provide a proper and safe system of
working; and
Failure to observe statutory regulations.
This duty of care extends to all such circumstances
where the employer ought to have taken reasonable and
practicable measures to ensure safety of his employees.

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 Thetest was stated in Stokes v GKN Ltd [1968] 1
WLR 1776 that the overall test is the conduct of the
reasonable and prudent employer taking positive
thought for the safety of his workers in the light of
what he knows or ought to know.

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 Rights of an employee
There are number of rights which an employee is
entitle to enjoy in an employment relationship. These
include;
Right to be provided work
 There certain special relationships and circumstances which make
it necessary for the employer to provide work. There certain skills
which once kept without being utilized, the employee runs a risk
of losing his market value and this may disadvantage him in case
he seeks new employment.
 In the case of Steward Wrightson Ltd v Thorpe 1977 (2) SA 943
an insurance agent Thorpe (who was also a director) was told not
to come for work (or use his office) while on notice of
termination of service.

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The Court found that because Thorpe was a
director of the Company and a director and
manager of the branch company, and because of
the special relationship that existed between
Thorpe and his clients, denying Thorpe work and
the use of an office for six months had amounted
to a fundamental breach of contract.
That denial degraded Thorpe of his status and was
prejudicial to Thorpe’s future prospects (i.e
finding work again in the insurance field).

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Right to be paid
Right to equality (Protection against unfair
discrimination)
Right to be informed and consulted on any change that
affects terms and conditions of employment
Right to have safe and secure workplace environment
Right to be trained or afforded opportunity for carrier
development

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Right to be compensated for injuries arising out of and in
course of employment.
Right to be given paid leave
Right to be given fair trial in disciplinary proceedings
Right to have fair termination of his employment
Right to have better working tools at workplace, etc

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 Employee’s obligations
The employee has the following obligations towards
his employer;
To tender his services as required by the contract
 This could be one of the most important obligations which an
employee has towards his employer.
 The employee is expected to offer his full contractual services to
his employer and be rewarded accordingly. This goes together
with working in accordance to agreed hours of work. Punctuality
is essential at any workplace in order to ensure effective
productivity and efficiency.
To abide with lawful instructions or directives from his
employer

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To protect the property of his employer or to serve and
protect the employer’s interests and act in good faith
To conduct himself in such a manner that will not tarnish
the good image of the business of his employer
To keep confidential such information which, if disclosed,
may harm the business of his employer.
 There is both common law and statutory prohibition against
divulging employer’s confidential information.
 S.101 of the ELRA & S.59 of LIA are just and example of this
statutory prohibition.
 It is in the public interests that the employer should be allowed to
ran freely his business without threats of his confidential
information be disclosed to his detriment.

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 In the case of Camelot v Centaur Publications Ltd [1998] IRLR
80 a copy of the draft accounts of the company which ran the
National Lottery was sent by an unknown employee to an
interested journalist.
 The information revealed, amongst other matters, increases in
remuneration for some of the company’s directors. The Company
asked the court to ensure that the leaked documents were
returned, so that they could identify the employee who caused the
leak.
 The Court accepted that it was in the public interest to enable the
employer to discover a disloyal employee the document be sent
back to the employer.

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To respect and cooperate with his fellow at work place
and elsewhere within the scope of his employment
To work competently and diligently
To act in mutual trust and confidence.
 The employee owes his employer a fiduciary duty which is
derived from the common law duty of mutual trust and
confidence.
 The employee is, for instance, not expected to compete unfairly
with his own employer or work against the interests of his
employer.
 The employee should not use the advantage of gaining
confidential information or trade secrets belonging to his
employer to his own advantage.

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 In the case of CyberScene Ltd and Others v i-Kiosk Internet and
Information Ltd 2000 (3) SA 806 a number of senior employees
resigned to form a new company.
 Because of their positions they had access to the employer’s
confidential information relating to its business and operations.
The former employer claimed breach of fiduciary duty since the
employees used such confidential information to compete
unlawfully with their former employer.
 The Court held that fiduciary duty does not cease automatically
after termination of an employment. The employees may use
general skills, knowledge and experience for their personal gain
but not using their employer’s confidential information to their
advantage.

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Generally, the question of rights and duties of the
parties to an employment contract has to be
determined by looking on;
Terms and conditions of employment agreed by the
parties
Minimum standards provided by the law
Common law principles
Implied rights and duties.

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