Legal
Nov/Dec
2002
Employee
& Employer Rights and Obligations
by Tom Williams, Solicitor.
Honesty, trust, goodwill and fidelity are essential
elements of both sides of the employment equation
Many employers hold the view that employment laws are
slanted in favour of employees. Well, this isn't necessarily the total
picture. In fact, both the employer and employee have obligations and
duties that go beyond mere paying of wages and performing work.
As an example, a case heard by the House of Lords on appeal,
considered what is known as "Stigma Claims". These cases involve
a stigma attaching to an employee or even an ex-employee due to the
discreditable operations of the employer. As a result of the employer's
dishonesty or corrupt business dealings, employees and ex-employees
may be linked to that of the employer.
What can follow is that the employee looking for alternative
work has difficulty shaking the association with the dishonest or corrupt
employer: the employee suffers as a result of the employer's conduct;
is economically affected and his or her own reputation also suffers.
The employee experiences difficulty finding alternative employment on
account of the association with the dishonest or corrupt employer.
The House of Lords found that where such circumstances
were shown to operate then employees affected could sue for damages
against the employer.
The Employee's
Obligations
Apart from performing satisfactorily at work, an employee must also
observe other matters of a fiduciary nature. Every employment relationship
is founded on the principle of fidelity and good faith. If either of
these elements go missing or if either is breached, the relationship
founders.
Examples
A service station attendant gets to know regular customers. Some time
later, he goes to work for another service station and attempts to persuade
the customers to switch service stations. In this case, the attendant
would be in breach of the duty of fidelity and goodwill, even though
no longer employed by the previous service station from which the customers
were enticed.
And again: A service station is not trading very well
and existing employees believe it is poorly managed. They tender for
another service station close by without disclosing this to their own
management. Such behaviour is clearly deceitful, dishonest and lacking
in goodwill. The existing management could take immediate action to
terminate the employment of such employees and impose a legal ban on
the use of any customer list and or information.
Protection
An employer has the right to have business knowledge such as customer
list, marketing strategies, pricing methods and other confidential dealings
kept private and confidential. An employee who has access to such information
is prevented by law from disclosing this information.
This protection derives from the common law entitlement
of the employer to protect his or her property. Information that goes
to trading tactics and strategies, including customer database, is regarded
as property. The employee has a lawful obligation and duty to protect
the employer's interests. Failure to honour this lawful obligation and
duty could result in damages being awarded in favour of the employer.
What about Outside
Work
In some cases an employee's behaviour outside work hours may impact
on the employment relationship. For instance, a manager in charge of
the takings who is subsequently charged for credit card fraud may be
terminated. Even though the charges were not directly associated with
the manager's work and the fraud was a personal matter for the manager
AND did not affect the service station, it may still be sufficient to
terminate his or her employment.
The reasoning is that the manager was in a position of
trust. He or she was required to exercise control over money and a high
level of honesty is required in such a position. The employer is entitled
to have a person who can be trusted in such a position: the manager's
honesty has been placed in doubt - although not found guilty at the
relevant time.
The question arises, does the employer have to take the
risk with a person whose honesty may be less than what is required?
Should the employer be forced to keep a manager in employment that may
put the business takings at risk?
The answers are not always straightforward but in most
cases the employer will be permitted to move such a manager out of the
position of trust. After all, it is the employer's money and there is
no compelling reason why it should be placed at risk when complete trust,
fidelity and goodwill may not be present.
Conclusion
This area of employment law takes on a dimension of personal responsibilities,
duties and rights. It recognises that the elements of honesty, trust,
goodwill and fidelity are essential to promoting a happy work environment.
Employers are entitled to have trustworthy employees and employees are
entitled to be treated with respect and dignity. Where these factors
don't operate it leads to lack of satisfaction and unhappiness at work.
Where you have problems such as these you are best
advised to seek some assistance from qualified people.