Influence of External Sources of Employment Law on Employer Directives

Introduction

The employment correlation is a lawful concept broadly accepted in countries around the globe to refer to the link between the employer and the employee. The former works for the latter under distinct conditions for remuneration. Through this link, the mutual rights and obligations are created between the employee and the employer. The employment relation persists as a means through which workers access the rights and payback characteristic of employment in the spheres of labor law and public security. This relationship is the main point of reference for shaping the nature and scope of employer’s rights and obligations towards employees.

The legal structure that controls the employment relationship is a crucial component of a countrywide policy for running the labor market change considering the need for elasticity and security (van Jaarsveld 5)¹. The numerous changes taking place in the labor market have given birth to a myriad of sources of the employment contract. This paper expounds on the influence of various external sources which are outside the written contract of employment. The scope will be limited to the ways in which the law allows the internal and external sources to co-exist as well as citing examples of how the external sources influence employment issues like wages.

The employment relationship is a contractual relationship. At its most fundamental level, it contains a promise from the employee to employer to serve the employer within the limit of the employee’s job description, and the employer to compensate the employee for this service (Stewart, 13) ². A contract arises where one party makes an offer, and the bother party willingly accepts that offer. Another prerequisite of a contract is that consideration exists. This implies that each party ought to get some benefit from the agreement. In the case of an employment contract, the employer receives the benefit of the employee’s service. On the other hand, the employee receives the benefit of remuneration.

Influence of external sources of employment law on Employer directives

The primary source of employment law is the employment contract. The employment contract contains terms and conditions that spell out the relationship between the employer and the employee. In the current dynamic world of labor, the expressed terms have been proved inadequate to cater for all the loopholes that caused by this dynamism. This has facilitated the incorporation of external sources of employment law in the employment contract. These sources or materials have had a lot of impact on common law or employer directives. This paper discusses how external sources of employment are influencing employer directives and why the law is allowing this to happen.

As mentioned, an employment contract consists of terms and conditions. The terms can either be express, that is, terms which have been precisely discussed or recorded by the parties, or implied, meaning that they are imported by law or incorporated into the relationship by the courts. The implied terms of an employment contract are therefore taken as external sources of the employment law as they are not expressed in the employment contract. An employment implies duties and responsibilities for both the employer and the employee. For purposes of this paper, more prominence will be given to how these implied terms are influencing employee directives.

Duty to pay wages

One of the common implied terms that influence employer directives is the duty to pay wages. Although the employment contract may contain the same clause, this term is included in the implied terms. In deed, this is the most crucial of the employer’s implied duties. An employer has an implied duty too pay all of his or her employees for the work they have done. In cases where an employment contract has a provision for sick pay, but fails to specify the duration that it will be paid, a court or tribunal can step in to offer a decision on how long the leave shall be payable. It is generally presumed that an employer can only pay sick pay for a realistic period of time. The question of how realistic the period of time is left to the industry that the employee belongs to or any relevant circumstance found by court or tribunal. Howman & Sons v Blyth [1983] IRLR 139 held that the reasonable term to be included regarding the period of time where the normal practice allows for sick pay for a limited period only is the term valid in the industry³.

Apart from the amount of money paid to an employee in relation to the work they have done, the definition of wages stretches beyond this to include holiday pay or commission earnings. Borrowing from Farrell Matthews & Weir v Hansen [2005] IRLR 160 wages also include flexible bonus payments in cases where the employer has been told that he or she will receive the payment⁴. If a contract of employment or the employer’s directive gives room for the employer to change the hours of shift patterns of an employee, the employer is obliged to adjust the wages to reflect the changes. From these implied terms adopted from industry or case laws, employers are now forced to conform to these requirements in order to ensure efficiency in the workplace and employee satisfaction.

Duty to employ competent staff

Another implied term that is having a lot influence on employer directives is the duty to employ competent staff. Employers ought to ascertain that the staffs whom they employ are competent to perform the tasks which they are supposed to do. In addition, employers are obliged to train their employees on how to use any equipment in the right way. This duty stretches to include an ascertainment that known trouble makers and practical jokers are punished or dismissed. In Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348, the company’s notorious practical joker injured another employee in the course of his mischief, and the employer was liable for the action⁵. However, a different scenario happened in Smith v Crossley Bros Ltd [1951] 95 SJ 655. In the latter case, it was held that a single isolated prank did not attract liability for the employer⁶.

Duty to provide proper plant and equipment

Implied terms also require employers to provide proper plant and equipment. Common law requires all employers to ensure that any equipment provided for use by the employees is safe. This includes a duty to include ensuring regular and proper maintenance of the equipment. Although employers are supposed to routinely inspect equipment, the employer will not be liable if there is a concealed defect which may not have been detected. In addition, employers are not liable if employees fail to adequately use the machine after being trained. In Parkinson v Lyle Shipping Co Ltd [1964] 2 Lloyd’s Rep, an employee was injured when trying to light a boiler⁷. The claim for compensation failed because the defect did not lie with the machine but was his fault. Considering the cause, if the employees would not have used safety equipment had it been supplied, the employer will not be liable for the injury simply because the equipment was unavailable for use. If a statute requires the supply of safety equipment, much consideration is given to the construction of the particular statute in case a problem arises about its not being used.

Duty to provide a safe working place

In addition to provision of proper plant and equipment, employers are also obliged to provide a safe working place. They are required by common law to take reasonable steps to ensure that workplaces are safe. Further on, they have a duty to take positive steps to protect their employees. This duty is valid even when the employee is not working at the time on the employer’s own premise. Nevertheless, in the latter case, it may prove challenging to take much care of the employee as could betaken on the employer’s premises. In Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110, an employee was injured while cleaning windows on an employee’s premises⁸. It was ruled that the employer had taken all reasonable steps to ensure the safety of the employee. As such, employers would not normally be expected to inspect every place in which their workers are to be deployed. This necessitates the need for insurance cover for workers involved tasks in the premises of people other than their employers like health visitors and social workers.

Duty to provide a proper working system and effective supervision

Employers are not only expected to devise work systems but also ensure that their employees are trained in their use and follow them on regular basis, to the extent of appointing supervisors who ensure workers use necessary equipment. In Mountenary v Matthews, it was held that employers are obliged to caution employees of risks of injuries and educate them in order to draw symptoms to the attention of doctors. Employers are also supposed to warn employees of any dangers inborn in the work they are supposed to do. In Pape v Cumbris 99 [1992] 3 All ER 211, a part-time cleaner contracted dermatitis because of exposure to irritant cleaning products. Although the employers had provided gloves, it was ruled that they should have warned of a possibility of contracting dermatitis if gloves were not worn and that the information should have been included in a safe system of work⁹.

In Walker v Northumberland CC [1995] 1 All ER 685, the range of the employer’s duty to provide a safe workplace was extended to include the need to provide working conditions that do not cause undue stress to employees¹⁰. The claimant was a senior social worker who had suffered a previous nervous breakdown due to pressure of work. After three month break, he resumed work and discussed his predicament with his superior who offered to provide extra assistance to relieve him of his burden of work. However, when he started working again, the claimant discovered that he had a big backlog of work leading to a second nervous breakdown hence permanently stopping the work. He was later dismissed due to ill health but brought a claim for negligence against his employer. It was held that the employers had breached the duty to provide a safe system of work.

Duty to be fair and reasonable

Employers are obliged by implied terms to be fair and reasonable. This is the employers’ part of the general duty of mutual trust, confidence and cooperation. In Woods v WM Car Services (Peterborough) Ltd [1982 ICR 693 (CA), It was ruled that an employer ought to be good and reasonable just the way a servant is supposed to be good and faithful¹¹. An employee should not tolerate his or her employer’s unreasonable behavior. In Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372(CA), it was held that employers are not permitted to conduct themselves in manners to seriously damage the employer-employee relationship¹². In addition, the employer’s conduct may not be voluntary but is adequate that an objective employer should find such behavior likely to lead to damage of the employer-employee relationship.

Duty to indemnify their employees

Employers are also required by external sources apart from the employment contract to insure and indemnify their employees. This is valid for expenses incurred while the employers were working for them. Nevertheless, in a case where the employee is negligent, the employer has no obligation to indemnify the employee for any expense incurred as due to the negligence. In Lister v Ramford Ice & Cold Storage Co Ltd [1957] AC 555 (HL), an employee negligently knocked a third party and injured him while driving a truck at work. In this case, the third party happened to be the employer’s father. The third party claimed and was compensated by the employer. As such, the employers sought to recover the costs from the employee’s wages. Though the employee claimed an entitlement to indemnification, the House of Lords denied the claim arguing that it was not the duty of the employer to indemnify for expenses resulting from negligence.

Duty to provide work

In Collier v Sunday Referee Publishing Co [1940] 2 KB 647, common law does give employers the duty to provide work. The ruling was that a contract of employment does not necessarily, or under normal circumstances oblige employers to provide employees with work¹³. However, this is on condition that the employee continues to pay the employee his or her due wages. Further on, this implied term has several exceptions as follows. To begin with, an employer is obliged to provide work to an employee if the contract entails a reputation that requires to be maintained through working like acting. In addition, there is also an obligation for an employer to provide work of the contract is grounded on piecework or commission because failure to give work is tantamount to denying the employee’s livelihood.

Other instances that require an employee to provide work are cases where the contract in which the employee is bestowed some privileges while on duty, and which would inaccessible if the work was withheld. Lastly, an employer is bound to provide work if the contract with the employee involves maintenance of skills of the latter through working. In Langston v Amalgamated Union of Engineering Workers [1974] 1 All ER 980, there was an attempt to alter a law to accommodate an employee’s right to have work when available. Nevertheless, this position has not been well incorporated by other judges¹⁴.

Duty to provide medical assistance

In many jurisdictions, the employer’s duty of good care entails the duty to provide medical assistance to an employee. The latter may, while on job, be too ill or injured to be capable of caring for them. Failure to provide such help makes the employer liable for damages emanating from lack of aid. If an employer provides an employee with medical assistance or requires the employee to submit to a medical examination, the employer’s duty of good acre requires disclosure to the worker of any dangerous or potentially dangerous condition revealed to the worker by that medical examination or treatment. If an injury results form a lack of disclosure, it will constitute a work-related injury.

Why the law allows external sources to influence the employment contract

The primary source of employment law is Statutes enacted by Parliament or common law as they are commonly known. However, due to the dynamic nature of the labor market, there has been a need to come up with other sources. These external sources outside the employment contract as include collective bargaining and collective agreement, interviews, advertisements and international labor standards (Despax et al. 24)¹⁵. Before discussing each of these sources, it is important to outline the factors that have necessitated the growth of these external sources of employment law.

One of the reasons that led to the rise of external sources of employment law is the aggressive assertion of managerial rights that took place in many industrialized countries in the late twentieth century. This phenomenon coincided with an era of rapid global economic reformation. Employers have frequently cited common law a constraint to the structure and performance of work. This has facilitated the need for more flexible sources of regulation in the labor market in order to realize efficiency in the workplace (Deery 27¹⁶.

Another factor that has led to existence of external sources of employment law is the presence of an enabling political climate since the late twentieth century. Governments have taken moves to deinstitutionalize the determination of wages and working conditions hence providing employers with greater discretion over employment issues. Such moves have been endeared to provide a more attractive environment for business investment and economic growth (Moffat 53)¹⁷. In many Western countries, there has been a clear political intention to introduce more flexibility into their systems of labor market regulation and to eradicate perceived rigidities which have considered as inhibitors to efficiency and production. This has, therefore, created room for other sources of employment law apart from the employment contract determined by common law (Baker & Mackenzie)¹⁸.

The third factor that has facilitated the existence of other sources of employment is the rhetoric and language of human resource management which seeks to create a corporate culture of individual responsibility and self-interest. The presence of the common law is considered as a restraint to freedom of individuals who wish to pursue their self-interest or create conflicting royalties. This phenomenon has paved way for more flexible sources of the employment contract that can factor in this dynamism. Given that Acts of Parliament cannot cater for the al the above factors, it has been necessary to come up with other sources of the employment contract in order to increase efficiency in the workplace (Sewerynski 3)¹⁹. The following discussion now focuses on each of the external sources mentioned earlier in this paper and how each influence employment terms and conditions.

Conclusion

In conclusion, there is no doubt employers are been greatly influenced by the external sources of the employment contract. This is, in deed, affecting their daily running of the workplace. The policies brought in by these external sources like case are not bringing fairness in the employment relations but also benchmarking the organization structures with those having best practices in the particular filed. As such, external sources are a phenomenon that should be adopted in the workplace without suspicion or second thought.

Bibliography

Baker& Mackenzie. Australian master human resources guide 2010(8^th ed).Sydney: CCH Australia Limited, 2010.

Deery, Stephen. Employment relations: individualization and union exclusion: an international study. Annandale, NSW: Federation Press, 1999.

Despax, Jacques, Rojot, Jacques & Laborde, Jean-Pierre. Labor Law in France. AH Alphen: Kluwer Law International, 2011.

Goldman, Alvin. L & Corrada, Roberto. L. Labor law in the USA. AH Alphen: Kluwer Law International, 2011.

Marlize Ingrid van Jaarsveld ‘Employment Law’ Electronic Journal of Comparative Law, vol. 12.1. Web.

Moffat, Jane. Law Society of Ireland Manual Employment Law (2nd Ed), Oxford: University Press, 2007.

Seweryński, Machal.Collective agreements and individual contracts of employment Volume 26 of Studies in employment and social policy. AH Alphen: Kluwer Law International, 2003.

Stewart, Andrew. Stewart’s Guide to Employment Law. Sydney: Federation Press, 2008.

Footnotes

1. Marlize Ingrid van Jaarsveld ‘Employment Law’ Electronic Journal of Comparative Law, vol. 12.1. Web.
2. Stewart, Andrew. Stewart’s Guide to Employment Law (Sydney: Federation Press, 2008) 13.
3. See Howman & Sons v Blyth [1983] IRLR 139.
4. See Farrell Matthews & Weir v Hansen [2005] IRLR 160.
5. Cited in Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348.
6. See Smith v Crossley Bros Ltd [1951] 95 SJ 655.
7. See Parkinson v Lyle Shipping Co Ltd [1964] 2.
8. Cited in Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110.
9. Consider Pape v Cumbris 99 [1992] 3 All ER 211.
10. See Walker v Northumberland CC [1995] 1 All ER 685.
11. Cited in Woods v WM Car Services (Peterborough) Ltd [1982 ICR 693 (CA).
12. See Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372(CA).
13. Refer to Collier v Sunday Referee Publishing Co [1940] 2 KB 647.
14. See Collier v Sunday Referee Publishing Co [1940] 2 KB 647.
15. Despax, Jacques, Rojot, Jacques & Laborde, Jean-Pierre. Labor Law in France (AH Alphen: Kluwer Law International, 2011) 24.
16. Deery, Stephen. Employment relations: individualization and union exclusion: an international study. Annandale, NSW: Federation Press, 1999.
17. Moffat, Jane. Law Society of Ireland Manual Employment Law (2nd Ed) (Oxford: University Press, 2007) 53.
18. Baker& Mackenzie. Australian master human resources guide 2010(8^th ed).Sydney: CCH Australia Limited, 2010.
19. Seweryński, Machal.Collective agreements and individual contracts of employment Volume 26 of Studies in employment and social policy (AH Alphen: Kluwer Law International, 2003) 3.