A plea for an employer (minimum) duty of disclosure

In the case of NHS Leeds v Larner and Fraser v Southwest London St George’s Mental Health Trust the Employment Appeal Tribunal tried to clarify the position of employees who are on long-term sick leave in relation to their right to take paid annual leave under the Working Time Regulations 1998 reg. 13(1). One of the questions raised in both cases, iswhether or not workers who are off sick also formally have to request to take or to carry over their annual leave, as required by WTR reg. 15(1). Unfortunately, the cases under consideration in this paper do not provide certainty in this regard. Nevertheless, if one considers the fulfilment of this condition as a prerequisite to take annual leave, the question rises whether it is not the responsibility of the employer to inform and maybe even to advise his sick employees in this respect, for in that case, it could be argued – as Mrs. Fraser did - that the employer’s failure to do so constitutes a breach of his implied duty of trust and confidence (cf. Scally v Southern Health and Social Services Board).

More generally, both cases could be taken as a starting point toreconsider whether or not the implied duty of trust and confidence or the employer’s duty of reasonable care has developed in such a way as to impose on the employer a duty to inform, to advise and to warn his employees more generally. Traditionally, the courts and tribunals have been reluctant to imply such a duty, arguing that the employer is not obliged to take reasonable care of his employees’ economic or financial well-being. Admittedly, given the conflict of interest between both parties to the employment contract, it could be regarded as “inappropriate” to impose a duty on the employer to function as the employee’s financial advisor (cf. Crossley v Faithful & Gould Holdings Ltd; see also Reid v Rush & Tompkins Group Plc).Nevertheless, several arguments could plea in favour of imposing some (minimum) duty of disclosure on the employer, based on the implied term of trust and confidence or the employer’s duty of care. This implies a reassessment of the relevant case law, and a discussion on the extent of such a duty. With respect to this extent, a classification will be made, ranking the different aspects of the duty according to the size of the burden that each aspect places on the employer.