Implied terms of an employment contract

A recent filmset tragedy has started a broader discussion on workplace safety in the United States. The incident happened on 21 October on the set of the movie Rust when actor Alec Baldwin fatally shot cinematographer Halyna Hutchins and injured another person with a prop gun.

While an investigation is ongoing and no admission has been made as to anyone’s culpability, these events have led to calls for a banning of live firearms on film sets. It also increased pressure for authorities to deal with work safety violations through greater regulation, rather than relying on industry standards.

While the US legal system is significantly different to ours, the story does convey an important message which rings true in England and Wales: employers owe duties to employees, including the duty to take reasonable care of their health and safety when at work. If this is breached, the consequences can be devastating. While this is an extreme example, employers do face a real risk of losing employees and being involved in costly and time consuming litigation every time they breach their duties to their employees.

Just because an obligation is not written in a contract, it does not mean it does not exist.  There are several duties which are implied by law, as they are regarded as a necessary characteristic of an employment contract. Below, we look at some employer obligations which are implied in all contracts of employment.

Health and safety

While taking reasonable care of employee’s health and safety is an implied term of an employment contract, employers also have common law and statutory duties to do so. This duty covers both the employees’ physical health and mental health.

Wages

Employers have an obligation to pay the wages of employees who are ready, willing and able to perform work as provided by their contract. There are, however, circumstances where employers have a contractual right not to do so, such as a zero-hour contract.

Expenses

Depending on the nature of employment, there may be an implied obligation for employers to indemnify their employees in respect of costs, claims and expenses incurred by the employee in carrying out their duties. For example, where employees are asked to travel to a different location from their usual place of work, their expenses would usually be covered by their employer.

A suitable working environment

Employers also need to ensure that, so far as reasonably practicable, employees have a suitable working environment in which they can perform their duties. This duty goes beyond matters of health and safety (for example, protection from second-hand smoke) and covers other factors such as temperature in the workplace.

Trust and confidence

While this is a mutual obligation applying to both employers and employees, it is more frequently cited against employers. The implied duty is that an employer must not conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence with its employee. Employers in the past have been found to have breached this duty in various ways, which include bullying, discrimination and making the employee’s job untenable.

It is essential for employers to be aware of the duties they owe to their employees and abide by them in order to maintain a positive work environment. It is equally important that employers address any issues early on to ensure employees feel supported, and that their relationship of trust and confidence is not damaged as a result.