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Employees Duties

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27 April 2011

By Waheedan Jariwalla

In determining whether a person is an employee or an agent, evaluating his duties is often the key in this regard. The key duties to appreciate are as follows:

Duty to give personal service: The relationship of employee and employer is a personal one and the employee may not delegate performance of his duties. This can be crucial in determining whether someone is an employee or otherwise.

Duty to obey reasonable orders: The employee is under a contractual duty not to wilfully disobey a lawful order. Nor must the employee act in a matter designed to frustrate the commercial aspect of the contract.

Duty of reasonable care and indemnity: The employee is under a duty to exercise reasonable care and skill in the performance of his duties. An employee will be in breach of this if he performs his duties negligently or incompetently. If an employee is in breach of this he is also liable to indemnify the employer for any loss suffered by the employer by reason of the employee's breach.

Duty of fidelity or good faith: This duty is sometimes referred to as the employee's part of the mutual duty of trust and confidence. T his duty consists of a number of aspects of confidentiality and non-competition, some of which also apply after the employment has ceased.

Secret profits: An employee must not make a secret profit; if he does so he can be compelled to account to his employer for the profit made.

Competition: Unless the employee's contract expressly prohibits it, taking a job outside working hours is not necessarily a breach of the employee's duty of fidelity, even if that second employer is a competitor. For a breach to occur, the employee must normally occupy a position where he has access to confidential information or trade secret such that the employer is at risk of such information being passed to a competitor. After employment, the ex-employee may compete with his former employer without restriction. If a restrictive covenant exists, this is subject to the doctrine of restraint of trade.

Conflict of interest and duty: During employment, the employee must not allow his duty of fidelity to his employer to conflict with his personal interest. In particular, an employee who is intending to leave his employment and set up in completion may which to obtain information from his employer or entice away his employer's customers and staff.

Trade secrets and confidential information: During employment, an employee is in breach of his duty of fidelity if he uses or reveals trade secrets or other information which by its nature is confidential or which has been impressed upon the employee as being confidential. After employment has ceased, the employee is only prohibited from revealing or using his former employer's trade secrets or highly confidential information equivalent to a trade secret.

By Waheedan Jariwalla - Lawdit


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2011-04-29 21:45:20 in Legal Articles

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