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Example text
Legal principle The House of Lords held that the implied duty was personal to the employer. It could not be devolved upon one of its employees. Therefore, the employer could be held liable for negligence in the performance or discharge of that implied duty to exercise reasonable care. Accordingly, the doctrine of ‘common employment’ was abolished. 2 Yes, this exists in case of employment relationship – proceed to Stage 2 Stage 1 Duty to exercise reasonable care? Stage 2 Did the employer breach the duty?
In contrast, in the case of the ‘contract personally to do work’, the individual concerned may be providing services personally to clients or customers – yet be covered by the legislation. g. Hepple (1986). On the other side of the debate are those who favour the retention of the existing contractual model, albeit in a (radically) reformed guise. For example, Freedland is of the view that employment law should continue to be predicated on contract law. Students who consider whether the employment relationship ought to continue to be based on the law of contract would be going above and beyond what is asked and are likely to gain additional marks.
This may also be combined with other areas of employment law. For example, 19 2 Implied terms of the contract of employment (1): duties of the employer ■ the implied duties of the employee; ■ in the case of the employer’s implied duty to pay wages/remunerate, the effect on this duty of the National Minimum Wage Act 1998 and the prohibitions on the unauthorised deductions of wages in Part II of the Employment Rights Act 1996 (ERA). Problem questions concentrating on the implied duties of an employer may be framed in such a way that you will be asked to advise employees whether they have a reasonable prospect of success in raising a claim in an employment tribunal or a legal action in the courts.