How far can employers coerce employees into potentially illegal action?
Kirsty Alleyne, July 16, 2009
The Guardian reported last week that Robert Murdoch's News Group, which owns the Sun and News of The World, is alleged to have paid out more than 700,000 to settle legal cases that threatened to expose evidence of its journalists' illegal methods to obtain information.
They are alleged to have used private investigators to illegally hack into the mobile phone messages of numerous public figures, as well as to gain unlawful access to confidential personal data, including tax records, social security files, bank statements and itemised phone bills.
The allegations are currently under investigation, but an interesting general employment law issue sprung to mind when reading this story: how far can employers push or coerce their employees into doing things that are potentially illegal?
The duty of obedience
The courts have identified certain terms that they regard as characteristic of the employment relationship and which are implied into all contracts of employment.
These are known as ‘common law' duties, one of which is the duty of ‘obedience'. This requires employees to carry out the reasonable and lawful instructions given by or on behalf of their employer. Whether an instruction is reasonable will depend on the circumstances (in particular, the nature and scope of the employee's duties) and whether the employee is contractually obliged to comply with it. For example, if an employer requires an employee to temporarily assist another employee who is overwhelmed by work, even though this may not be within the employee's job description, it will generally be reasonable for the employer to require him to do so (provided the work is not demeaning in some way). Disobedience is a form of misconduct and may amount to a sufficiently serious breach of contract such as to justify summary dismissal.
An employee is not, however, obliged to obey unreasonable or unlawful instructions. ‘Unlawful instructions' should be fairly easy to identify. Plainly, theft or fraud would come within this category, as would serious breaches of the Data Protection Act or the Telecommunications Act. ‘Unreasonable instructions' could include a requirement or instruction that would be likely to put an employee in danger (although, employees in the fire or police services, for example, may be expected to accept a higher degree of risk as part of their duties).
Protection from unreasonable or unlawful instructions
If the employer insists on the employee carrying out an instruction that falls outside the scope of his duties, or is unreasonable or unlawful, the employer is likely to be in breach of contract and the employee may, if the breach is fundamental, be entitled to resign and claim constructive unfair dismissal.
Further protection is afforded to employees by the Public Interest Disclosure Act 1998 (the ‘whistle-blowing legislation'), which protects employees who, out of a sense of public duty, blow the whistle and reveal serious employer misconduct, such as the commission of a criminal offence or a failure to comply with a legal obligation. Employees have the right to raise this initially with their employer, or, if employees reasonably believe that they will be subject to a detriment if they disclose to their employer, to go to an outside agency.
Employees are protected against being victimised, subjected to any detriment or dismissed after making such a disclosure provided that it has been made in good faith.
So, there are serious dangers for employers where they attempt to push or coerce their employees into taking an unlawful action; constructive unfair dismissal and whistle-blowing to name but two. That said, employees do not entirely escape personal liability. Where an employee knowingly commits a crime he cannot simply rely on an ‘I was following orders' defence.
Kirsty Alleyne is a solicitor at specialist employment law firm DC Employment Solicitors