Part 4Business resources
564
1 How is the relationship of employer and worker
established?
2 In connection with the provisions for maternity leave
and statutory maternity pay:
(a)What is the maximum leave entitlement?
(b)What is the amount of maternity pay?
(c)For how long must the claimant have been
continuously employed?
3 Des and Eric are both employed by a bus company.
Des is a bus driver and Eric a conductor. Eric has
always nursed an ambition to be a driver and Des
has, on occasion, let Eric drive a bus around the
depot before other employees turned up for work.
Last week, while Eric was having a drive around the
yard, he struck Des who was riding his motor bike
around the yard at 60 mph.
Discuss the liability of Eric and the bus company
in regard to the injuries suffered by Des.
4 Monty signalled to a van driver of Python Ltd to
stop and asked him to take him to the Grotty
Towers Hotel. The hotel was some five miles away
from the route which the driver would usually take in
the course of his duties, but he nevertheless agreed
to give Monty a lift to the hotel. When the driver had
deviated a quarter mile from his authorised route, he
carelessly collided with another vehicle and Monty
was injured.
As company secretary of Python Ltd, you have
received a letter from a firm of solicitors representing
Monty threatening legal action against Python
Ltd. Your managing director asks you to draft
a memorandum for him on the legal aspects
of the case.
Draft the memorandum.5 You have recently been appointed the company
secretary of Foundry Ltd. The following problems
emerge at the first board meeting.Self-test questions/activities
trespass and nuisance, but in the context of contract the
remedy has been granted to enforce a negative stipula-
tion in a contract in a situation where it would be unjust
to confine the claimant to damages. An injunction has
been used as an indirect method of enforcing a contract
for personal services, but a clear negative stipulation is
required. Reference should be made to Warner Brothers
v Nelson(1936) in Chapter 7 as an illustration of the
application of the negative stipulation rule and the
developments in it in more recent times.
In this connection it should also be noted that s 236 of
the Trade Union and Labour Relations (Consolidation)
Act 1992 provides that no court shall by way of specific
performance or an injunction compel an employeeto do
any work or attend any place for the doing of any work.
Thus although, as the Warner Bros case illustrates, an
injunction was potentially available to enforce com-
pliance with a contract of employment, the prohibition
in s 236 (above) prevents a court from issuing a decree
of specific performance or an injunction against an
employee. The section would not affect the use at least of
an injunction where the contract was for services and
not employment, as would be the case between a boxer
and his manager though even there the courts are reluct-
ant to make the order (see Warrenv Mendy(1989)).Employee’s breach of contract
An employer may sue his employees for damages for
breach of the contract of service by the employee. Such
claims are potentially available, for example, for damage
to the employer’s property, as where machinery is dam-
aged by negligent operation, as was the case in Baster
v London and County Printing Works(1899), or for
refusal to work resulting in damage by lost production,
as was the case in National Coal Boardv Galley(1958).
Such claims are rare and impractical because of the fact
that the employee will not, in most cases, be able to meet
the claim, and also, perhaps more importantly, because
they lead to industrial unrest. In these circumstances we
do not pursue the matter further here.
Actions by employers against their employees are,
of course, not uncommon in the area of contracts in
restraint of trade and for breach of the duty of confiden-
tiality. These matters were considered in Chapter 7 to
which reference should be made.