Employer and employee duties
Employers and employees have certain duties that are central to any employment contract. These are sometimes called 'imposed duties'.
The main duties are:
- duty of care
- duty of trust and confidence
- duty of fidelity
- are crucial to a working relationship
- help employers and employees work together effectively
- also apply when an employee is not working but is still employed – for example, when they're on holiday or off sick
- cannot be overridden by any express term in the contract
If either the employer or employee breaches one of these duties, it can damage or even end the working relationship.
Duty of care
- a common law 'duty of care' towards their employees
- specific rules they must follow under health and safety law
This means employers must do all they reasonably can to protect their employees' health, safety and wellbeing at work.
This could include:
- providing a safe working environment
- doing risk assessments and taking action based on what they find
- doing everything they reasonably can to protect employees from discrimination and bullying
- take steps to help prevent work-related stress
Examples of how an employer might breach their duty of care include:
- pressuring employees to work excessive hours
- failing to provide the right training or equipment for carrying out work safely
- allowing staff to work who are unwell or do not have the right training – they could put themselves or others in danger
- not putting measures in place to prevent sexual harassment at work
If an employer breaches their duty of care
There is no standalone legal claim called 'breach of duty of care'.
However, there are likely to be other legal claims for situations where the employer breaches this duty. For example:
- claims where the employer has failed to protect an employee from discrimination
- breach of contract – an employee cannot make this claim to an employment tribunal while they're still employed, but they can make a claim to county court
- constructive dismissal – where the employee resigns because the breach is so serious they do not feel they can continue working for their employer
If an employee notices a health and safety risk
If an employee identifies a health and safety risk at work, they should:
- speak to their employer
- follow any procedure their organisation has for reporting these
- speak to a health and safety representative at work if they have any questions
Employees can also report health and safety issues to the Health and Safety Executive (HSE) or their local authority if:
- they've raised the issue with their employer
- their employer has not responded or taken any action
- find out about reporting a health and safety issue on the Health and Safety Executive website
- contact the Acas helpline, if you're unsure who to report health and safety issues to
Detriment relating to health and safety
An employer must not cause an employee or worker 'detriment' because they:
- reasonably believe being at work or doing certain tasks would put them in serious and imminent danger
- take reasonable steps over a health and safety issue, for example complaining about unsafe working conditions
- inform their employer about a health and safety issue in an appropriate way
Detriment means someone experiences one or both of the following:
- being treated worse than before
- having your situation made worse
Examples of detriment could be:
- an employer reduces someone's hours
- experiencing bullying
- experiencing harassment
- an employer turns down someone's training requests without good reason
- someone is overlooked for promotions or development opportunities
Employees and workers are also protected if they whistleblow about health and safety. Find out more about whistleblowing at work.
Duty of trust and confidence
Employers and employees have a 'duty of trust and confidence' towards each other.
- behave in a way that means they can trust each other
- treat each other with respect
- not behave in an entirely unreasonable way – for example, an employer deliberately failing to pay wages without agreement
If an employer breaches the duty of trust and confidence
If an employer breaches the duty of trust and confidence, their employee might be able to claim:
- breach of contract
- constructive dismissal – if it's a very serious breach
Examples of how an employer might breach this duty include:
- refusing or failing to look into an employee's grievance
- demoting an employee without a good reason
If an employee breaches the duty of trust and confidence
If an employee breaches this duty, their employer might take disciplinary action, which could lead to dismissal.
Examples of how an employee might breach this duty include:
- making false expenses claims
- stealing from their employer
Duty of fidelity
Employees have a 'duty of fidelity' towards their employer. It is sometimes called the duty of good faith.
This duty means employees must behave honestly and faithfully towards their employer.
Under the duty of fidelity, employees must not:
- make a secret profit
- work in competition with their employer
- share confidential information that they learn while working for their employer
This duty is especially relevant when an employer includes a 'restrictive covenant' in their employee's contract. This is a term stating that an employee cannot take certain actions that are in competition with the employer's business.
'Non-compete clauses' are a type of restrictive covenant.
Doing work for another employer
The duty of fidelity would not stop employees taking on extra work for a different employer.
However, they should consider whether:
- the work is in competition with their employer – for example, if a hairdresser sets up their own business and visits clients of the salon they work for
- the work is detrimental to their employer – for example, if someone works excessive hours for another employer and they're so tired it's unsafe for them to be at work
In both these circumstances, the employee might be breaching the duty of fidelity.
Contact the Acas helpline
Contact the Acas helpline for any questions about employer and employee duties or circumstances that relate to them.