An important consequence of the applicability of Art
141 is to be found in the field of pensions, redundancy
and severance and termination payments. UK legisla-
tion contains exceptions for all these matters but Art 141
overrides this and follows from the decision of the
European Court in Barberv Guardian Royal Exchange
Assurance Group(1990). The effect of this decision is
that pension, redundancy, severance and termination
payments are treated as pay for the purposes of Art 141
and there must not be an inequality on the grounds of
sex in relation to the payments made.
The Pensions Act 1995 now deals with the main pro-
visions relating to equality in pensions law, and in broad
terms provides equal treatment for men and women
in regard to the terms and conditions on which they
become members of the scheme and their rights once
members.
Employer’s duty to provide work
There is, in general, no duty at common law for an
employer to provide work. If the employer still pays the
agreed wages or salary, the employee cannot regard the
employer as in breach of contract. The employee has no
right to sue for damages for wrongful dismissal but must
accept the pay. The main authority for this is Collierv
Sunday Referee(1940) where Mr Justice Asquith said: ‘If
I pay my cook her wages she cannot complain if I take
all my meals out.’
There are some exceptions at common law. For ex-
ample, a salesman who is paid by commission must be
allowed to work in order to earn that commission and
if he is not his employer is in breach of contract and
can be sued for damages. This is also the case with actors
and actresses because they need to keep a public image
which requires occasional public performances.
However, in William Hill Organisation Ltdv Tucker
(1998) the Court of Appeal decided that there could be
a duty to provide work beyond the traditional bases
for it, i.e. publicity-based careers and commission-based
remuneration. The case would appear to extend the com-
mon law duty to provide work (in this case during a
long six-month notice period) to all skilled workers who
may need work to preserve and enhance their skills. If in
such a situation an employer wishes to pay the employee
but not allow him to work out the notice, there must
be a specific provision in the contract to that effect.
Otherwise, the employer may be in breach of contract
which would allow the employee to leave at once so
that the employer loses the advantage of delaying the
employee’s competition straightaway, which these long
notice periods are designed to postpone.Employee’s property
An employer has in fact no duty to protect his employee’s
property.Part 4Business resources
484
Deyongv Shenburn(1946)The claimant entered into a contract of employment with
the defendant under which the claimant was to act the
dame in a pantomime for three weeks. Rehearsals took
place at a theatre and on the second day the claimant
had stolen from his dressing room his overcoat as well
as two shawls and a pair of shoes forming part of his
theatrical equipment. In the county court the judge found
that the defendant had been negligent in failing to pro-
vide a lock on the dressing room door and having no one
at the stage door during the morning of the particular
rehearsal day to prevent the entry of unauthorised per-
sons. However, the county court judge decided that the
defendant was under no duty to protect the clothing. The
claimant appealed to the Court of Appeal which also
decided that the defendant was not liable. The Court of
Appeal accepted that if there was an accident at work
caused by the employer’s negligence, then in an action
for personal injury the employee could also include
damage to his clothing if there had been any. In addition,
if in such an accident the employee’s clothes were, say,
torn off his back but he suffered no personal injury, then
it would seem that he could be entitled to recover dam-
ages in respect of the loss of his clothes. However, out-
side of this an employer has no duty to protect the
property of his employee.
Comment. This decision was also applied in the later
case of EdwardsvWest Herts Group Hospital Manage-
ment Committee(1957) where the claimant, a resident
house physician at the defendants’ hospital, had some
articles of clothing and personal effects stolen from his
bedroom at the hostel where he was required to live. He
brought an action for breach of an implied duty under his
contract of employment to protect his property. His action
was dismissed in the county court and his appeal to the
Court of Appeal was also dismissed on the basis that there
was no such contractual duty in respect of property.Employee’s indemnity
An employer is bound to indemnify (that is, make
good) any expenses, losses and liabilities incurred by an
employee while carrying out his duties.