Employment Law

Eighth edition

by Deborah Lockton

Update for Chapter 4

Implied Duties in the Contract of Employment

This update was last revised in October 2012
4.2.11(b)(vi) Vicarious liability

At the end of the paragraph discussing Lister v Helsey Hall Ltd please insert:

In the Court of Appeal cases of Weddall v Barchester Healthcare and Wallbank v Wallbank Fox Designs Ltd [2012] EWCA Civ 25 show that this closeness of the connection between what the employee is employed to do and the unlawful act can lead to different conclusions when the facts of the two situations appear very similar – in this case a violent reaction to a lawful order. In Weddall the employee had refused on the phone to cover a night shift, but then turned up on the shift and assaulted the claimant because of personal issues between them. It was held that the order was merely a pretext for the act of violence which was unconnected with his work and thus the employer was not liable. In Wallbank however, the employee was performing a task which was within his role during which the W tried to work with him giving him instructions. The employee got agitated and threw W onto a table, injuring him. The court held that, as the employee had reacted violently to a legitimate instruction to do with his work, the employer should be vicariously liable.
4.2.12 The Working Time Regulations 1998

After the discussion on holiday pay and sickness please insert:

Stringer has been taken a step further in NHS Leeds v Larner [2012] EWCA Civ 1034. In the case the employee had become ill with ME and depression and was off work for the whole of the leave year 2009-10. Shortly after that leave year she was dismissed on the grounds of ill health. The employee argued she was entitled to payment in lieu of the leave she had been unable to take because of her illness. Article 7 of the Working Time Directive states that holiday pay continues to be accrued during periods of absence because of illness and an employee who cannot take leave due to illness must be allowed to take it later in the year or if that is not possible in a subsequent year. As NHS Leeds was an emanation of the state Article 7 had direct effect and thus as the employee's contract had been terminated before she could take holiday, she was entitled to payment in lieu. The Court of Appeal added further that if the claim had been against a private employer, they would have and thus under the Working Time Regulations, it would have decided the case the same way to give effect to Article 7.
4.3.5 Duty not to disclose confidential information

After the discussion of Sanders v Parry please insert:

A more recent authority is Penwell Publishing (UK) Ltd v Ornstien [2007] EWHC 1570 where three journalists left to set up their own business. Their contracts contained clauses in respect of conflicting interests and confidentiality during employment but did not prevent the employees setting up in competition after employment. Ornstein had stored all of his contacts on his work computer. Some of the contacts he had brought with him to his new employer and others he had acquired while employed. He took the list with him when he left and the employer sought an injunction claiming the list was its property. The court held that Ornstein was entitled to copy contacts made before he entered employment but that his employer owned the contacts acquired during employment and Ornstein was bound by confidentiality in respect of these.
4.3.6 Duty not to work for a competitor

After the discussion of Lonmar Global Risks Ltd v West & Ors please insert:

Lonmar has recently been confirmed by the Court of Appeal in Ranson v Customer Systems plc [2012] EWCA Civ 841 in which the court has stated that an employee does not owe fiduciary duties towards his/her employer. The fact that the employee had resigned and set up his own business and that some of the work for that business had arisen through discussions he had held during his notice period, did not put the employee in breach of contract. The duty of trust and confidence is not as stringent as the loyalty required of a fiduciary. Another aspect of this duty  is solicitation of the employer's employees which will also be a breach. The issue of what constitutes solicitation was discussed by the High Court in relation to a post termination non solicitation clause in Towry EJ Ltd v Barry Bennett and ors[2012] EWHC 224. Mrs Justice Cox said that solicitation generally meant an employee "directly or indirectly request(s), persuade(s) or encourage(s) client(s) of their former employer to transfer their business to their new employer" (para 440). The fact that a large number of clients move to the new employer is not of itself evidence that there was persuasion. This shows the difference between a non solicitation and a non dealing clause. If the latter had applied the old employees would have been in breach.