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Implied Duties – When Will An Employee Be In Breach


19/06/09

By Karl Nicholas

An employee will be under various implied obligations during the course of his employment. Some of these implied obligations may continue even after the end of employment. A breach of any of these obligations during employment may well justify the summary dismissal of the employee. The duties are broad in their application and are flexible as to whether there has been a breach or not by an employee.

Duty of fidelity

Implied into every contract of employment is a duty on the employee to serve his employer with fidelity and good faith, which continues throughout the period of...

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...employment. The precise extent of the duty of fidelity will depend on various factors such as the seniority of the employee, and his position in the employer’s business.

The duty of fidelity encompasses a number of more specific duties:

• honesty: an employee is required to be honest in his dealings with his employer;

• competition: an employee must not, without the employer’s consent, do anything other than work for his employer during his contracted working hours, and in particular must not compete with his employer;

• preparation to compete: once an employee leaves employment, he will generally be free to work in competition with his ex-employer. Certain preparatory steps, such as looking for work, are permissible before the employee leaves. However, generally the employee may not:

o take those steps during working hours
o solicit the employer’s customers
o discuss or accept offers from customers or potential customers of his employer
o offer employment to a fellow employee
o memorise or copy trade secrets or confidential information

• secret profits: an employee must not make secret profits by using his employer’s assets

• inventions and discoveries: those made in the course of employment are normally the employer's and must be disclosed... continued on page two >

 

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