An Employer’s Duty to Provide Information and Advice on Economic Risks?

Abstract

Abstract This paper considers whether, and if so, to what extent the employer has an implied duty to provide information and advice to the employee on the existence and extent of their legal and contractual rights and on measures they may need to take to protect the economic interests of the employee. The paper explores the traditional reluctance of the courts to imply such a duty, and argues that this position should be reassessed in the light of the evolution of the duty of mutual trust and confidence. After providing an account of the relevant case law, the paper submits that strong arguments exist in defence of the imposition of a minimum duty of information and advice on the employer, but stresses that the imposition of such a duty in a concrete case must be ‘necessary’ or ‘reasonable’ given the legitimate expectations of the employee and the employer. Moreover, the content and extent of this duty depends on an assessment of those expectations in light of a standard of reasonableness – a standard which must be applied with respect to labour law’s normative functions and foundations.