EMPLOYMENT LAW

The nature and the content of the duties have changed over the years as the law has moved away from the attitude that the relationship is one of master and servant and towards the idea that it is a relationship between two equals. While the law has recognised an inequality of bargaining power between the parties it has gone someway towards balancing that inequality. The law has imposed duties upon the employer; likewise the law imposes duties upon the individual employee. Breach of these duties in either side will create a potential claim for a breach of contract. On its most basic interpretation, a contract of employment is a personal contract. Both parties agree to provide personal services for each other as seen Ready Mixed Concrete v. MPNI [1968] 2 QB 497. Hence, Scully and Mulder have a contract of employment with Xfiles plc.

To be able to advise Xfiles plc on its legal position we will firstly need to look at its duties and obligations as an employer. In the area of employment, it has been emphatically stated by the majority of judges that there is no right to work and therefore no duty of the employer to provide work. The clearest exposition of the law was by Asquith J in Collier v. Sunday Referee Publishing Co. Ltd [1940] 2 KB 647 when he said: "Provided I pay my cook her wages regularly, she cannot complain if I choose to take all or some of my meals out". From the problem question it seems as though Xfiles plc have provided work for its employee's even though it was not obliged to do so. Although there is no general duty on the employer to provide work, his duty to pay wages is fundamental to the bargain and if persistently broken will entitle the employee to sue for a repudiatory breach of contract.

However Xfiles plc have fulfilled their side of the bargain by providing their employee's with both the relevant skill and training to do the job as seen in Hawkins v Ross castings Ltd [1970] 1 All ER 180. As Scully has been trained in the latest surveillance techniques and has information about Xfiles plc equipment which has enabled Xfiles plc to be highly successful because of their competent employees.

Known we need to establish whether there has been a calculated breach on the employee's side to enable Xfiles plc to take action. The law has always required that an employee should serve his employer faithfully and act in a loyal manner. Denning MR said, "If the employee took steps to wilfully disrupt his employer's undertaking, he would be in breach of contract". Where as Buckley LJ said, "that there was an implied term in all contracts that the employee should serve his employer faithfully and promote the employer's commercial interest." The facts appears to suggest the employee's adhered to their fundamental duty to turn up to work and to work at the direction of the employer in return for wages as seen in Ticehurst v. Telecommunications plc [1992] IRLR 219.

An employee is under a duty to obey all the lawful orders of his employer, i.e. to perform duties which are reasonably incidental to his main job and to those which are within the scope of the contract as seen in Cresswell v. Board of Inland Revenue [1984] IRLR 190. Hence, Scully was expected to adopt the new methods and techniques in performing her contract because Xfiles had provided the necessary training for the latest surveillance equipment. In addition to the duty to obey reasonable, lawful orders the law imposes a duty on the employee that he will perform his work with reasonable care and skill. However it can be seen from the case of Superlux v. Plaisted [1958] The Times, 12 December that Scully had exercised reasonable care and skill and in the process also helped developed computer software that enabled them to track individuals under surveillance. However, such contributions towards developing software maybe classified as an invention, but under section 39 of the Patents Act 1977 an invention belongs to the employer;
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If it was made during the course of the duties of the employee and at the time of making the invention the employee had a special obligation to further the interests of his employer's undertakings.

Therefore Scully cannot claim that such contributions amounted to an invention to which she was entitled too. Because as the duty of fidelity states that any ownership of inventions made by the employee during the course of employment vested in the employer as seen in British Syphon Co. Ltd v. Homewood [1956] 1 WLR 190.

An employee cannot set up in ...

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