Cooperation, Employee's Duty Of
Key points
§ Implicit in every contract of employment is the employee's duty to cooperate with his (or her) employer. This means obeying his employer's lawful and reasonable instructions, and doing his job efficiently and to the best of his capabilities.
§ The shop assistant who is dilatory in attending to the needs of customers, or the secretary who takes two hours to type a one-page memorandum, could each be said to be lacking in cooperation even though both might argue that they are doing what they have been paid to do, if not as fast as their employer might wish.
§ The receptionist at the front desk who is always grubby and untidy, or who deals with clients and visitors in a peremptory fashion, is not only damaging his (or her) employer's good name and commercial objectives, but is also in breach of contract and is liable to be dismissed.
§ Whether or not such conduct justifies summary dismissal would depend on the seriousness of the offence, its immediate consequences, the size of the employer's organisation and the damage it has caused. The manager who swears at a valued client could justifiably be dismissed 'on the spot', although a preliminary investigation of the facts and circumstances is always advisable in such cases (especially if his (or her) conduct is wholly out of character). An employee, on the other hand, who is somewhat curt with a client, should be taken to one side and cautioned that a repetition could result in dismissal.
| Note | As was pointed out by the House of Lords in Polkey v Dayton Services Limited [1987] IRLR 503, it is an unwise employer indeed who ignores his (or her) own disciplinary procedures when dismissing an allegedly uncooperative employee (or, for that matter, any employee). A failure to consult or warn an employee about the consequences of his (or her) actions (or to dismiss that employee on the spot without benefit of even a cursory investigation of the circumstances) will usually be held to have been unfair. |
§ The implied duty of cooperation often finds expression in the disciplinary or house rules made known to employees when they first start work with their employer. In the absence of such rules, an employment tribunal might well challenge an employer 's 'reasonableness' in dismissing an employee who is unaware of the standard of conduct expected of him (or her).
Overtime working
§ An employee who refuses to work overtime on an isolated occasion would be less at risk than the employee who refuses to work overtime on any occasion (but see Note below). Again, a great deal will depend on the circumstances at the relevant time (including the size and administrative resources of the employer's undertaking). For example, a refusal to work overtime in a small organisation employing just a handful of staff could do serious damage to the employer's business; in which event, a dismissal for a first refusal might well be justified. In a larger establishment, such as a factory employing several hundred people, a first refusal might lead to a verbal or written warning.
| Note | The reader will be aware that, under the Working Time Regulations 1998, adult workers have the right to refuse to work more than an average 48 hours a week (including overtime hours) and young workers more than 40 hours a week. An employer who flouts the 1998 Regulations is liable to prosecution and a heavy fine. Furthermore, any worker who is subjected to a 'detriment', or dismissed or selected for redundancy, for refusing to work more than an average 48-hour week, may complain to an employment tribunal and will be entitled to compensation. |
§ If an employee is expected to work overtime, when and as asked to do so, that requirement should be spelled out in no uncertain terms at the job interview and reinforced in the written statement of terms and conditions of employment issued to employees in accordance with sections 1 to 7 of the Employment Rights Act 1996.
§ The employee who refuses to transfer from one location to another (eg, from a factory in Manchester to a sister factory in Bristol) could not be said to be lacking in cooperation if there is no express (or implied) mobility clause in his (or her) contract of employment. Indeed, an employer's insistence on such a transfer could very well prompt the employee to resign and pursue a complaint of unfair constructive dismissal. In some organisations (banks, hotels, building societies) it is standard practice for up-and-coming junior managers and graduate trainees to 'move about' – both to gain experience in their particular business or industry and to enhance their career prospects. Although there will undoubtedly be circumstances in which employment tribunals will identify an implied mobility clause in an employee's contract of employment, employers would be well-advised to stress this requirement both at the initial employment interview and as an express term in the written statement (or job description) issued to an employee when he or she first starts work.
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