We have already been concerned, in our previous article, with the concept and distinctions of the ancillary obligations of the employees. Also, with the consequences of their possible violation. But what are the individual obligations and what is their specific content?
The theoretical analysis of the specific, extremely important, set of obligations is very limited. However, precisely because of their importance, a, albeit brief-case-by-case, approach is appropriate:
Obligation of Obedience
It is the obligation of the employee to comply with the instructions and orders of their employer. It is basically exhausted in the provision of work according to the orders of the latter. Possible non-observance of the employer’s orders will constitute non-fulfillment (or improper fulfillment) of the employee’s main obligation: to provide work. The obligation to obey, therefore, constitutes a necessary content of the employee’s very main obligation to provide work. However, it is possible, in some cases, for this ancillary obligation to (also) be met independent from the main obligation. As an obligation, for example, to comply with obligations arising from the law (int.: smoking ban).
One of the most important, ancillary, obligations of the employee is the fiduciary obligation. It includes a number of ancillary obligations (the most basic of which follow), which arise from the obligation of good faith. The employee’s fiduciary obligation derives from the general obligation to show good faith (288 Civil Code: The debtor has an obligation to fulfill the benefit as required by good faith, after taking into account the commercial practices). It aims to maintain and promote mutual trust between the parties.
The fiduciary obligation requires the employee to take into account reasonable expectations and to promote the justified and legitimate interests of their employer.
The employment relationship is, in fact, a relationship of increased trust; However, its scope varies, depending on the type of employment relationship and the position held by the employee (eg: manager versus ordinary worker and full-time versus part-time employee).
The employee’s fiduciary obligation cannot prevent them from exercising their legal rights.
Important obligations arising from the fiduciary obligation are the following:
Obligation to not Compete
Content of the non-compete obligation is the omission of activities or acts in competition with the employer’s business. It does not matter if, in the end, the employer’s interests are harmed. As long as such a harm is possible.
The establishment of this obligation does not require a special agreement. It stems from the bona fide behavior that the employee must display (: 288 Civil Code).
The non-compete obligation is valid for as long as the contract of employment lasts. It can be extended after its termination, provided, however, that a special agreement is in place (: non-compete clause).
Obligation to Abandon Parallel Employment
By concluding a contract of employment, the employee undertakes to dedicate their labor force, for a specific time, to their employer.
As this commitment concerns a specific time, the employee can, at other times, be free to spend the rest of their time even employed by another employer.
This option may be limited:
(a) When there are contrary provisions of compulsory law (when, for example, further employment takes place in excess of the maximum working hours or during the annual leave).
(b) When employment with another employer is detrimental to the fulfillment of the employee’s obligations to the original employer. Or it constitutes (prohibited) competitive activity.
(c) When contrary clauses-permissible by the case law- have been agreed (eg omission of employment with another employer or employment after approval of the original employer).
Obligation of Confidentiality
The obligation of confidentiality is extremely important. Its content is the prohibition of the employee to make use for their own (or for a third party’s) benefit or disclose to third parties business (commercial and industrial) secrets. Also, personal data that they know on the occasion of their work.
This obligation is related, in the area of business secrets, to the aforementioned obligation to omit competing transactions.
Criminal penalties are provided for the case of unfair disclosure of commercial or industrial secrets by the employee. When, ie, the employee “… during the period of their service”, makes the aforementioned notification for the purpose of competition “… or with the intention of harming the owner of the store or the business”, is criminally prosecuted (art. 16 §1 law 146/1914). They face corresponding criminal liabilities when they make the above illegal notification after the termination of the employment relationship (art. 16 §2 law 146/1914).
The obligation of confidentiality may be maintained, subject to conditions, even after the termination of the employment contract (: retroactive effect). That is, without there being a special, relevant, agreement between employer and employee (7440/1999 Multimember Court of First Instance of Athens).
An additional obligation of the employee, while their employment contract lasts, is the obligation of information (or notification). This obligation is twofold.
The first aspect of the obligation concerns the obligation of the employee to inform, in a timely manner, the employer about their personal qualities or situations. Especially when they differ from those in force at the time of the conclusion of their employment contract. This is, in particular, information that affects the fulfillment of the obligation to provide work (eg illness, removal of a diploma from an employee as a driver, etc.).
The second concerns the obligation of the employee to inform their employer about possible damage or risk to the interests of the business (eg any damage to a machine, computer or car that was given to the employee for the performance of their duties).
Obligation to Submit Medical Examinations
An ancillary obligation of the employee, which arises in exceptional cases during the operation of the employment relationship, is the obligation to undergo medical examinations.
Exceptional cases include the performance of medical examinations: (a) provided by law (eg in occupations that may affect public health), (b) in the overriding interest of the employer (eg suspected contagious disease that poses risks to health of other staff; eg Covid-19).
In these exceptional cases, the examinations carried out must be limited to those which are strictly necessary for the attainment of their respective justifying purpose. Also: to ensure the sensitive personal data of employees.
Restrictions on freedom of opinion
The freedom of opinion enjoys constitutional protection. It is not, however, without limits. In the context of the employment relationship, as well, there are restrictions on the employee’s freedom of opinion.
The fiduciary obligation is violated, inter alia, when the employee’s opinion constitutes inaccurate criticism of the business. Also, when there is defamation of its products or services or insult to the employer’s honor.
Violation of these restrictions may even be a reason for termination of the employment contract. Whether or not the conditions of such a complaint are met, will depend on the magnitude of the employee’s infringement. In particular, the circumstances under which it took place (for example, the conditions of reprehensible statements should be taken into account: publicly or privately, on the internet and on social media, or in private with a relative, in discussion with a client of the business or a person-relative of the employee).
In any case, the extent of the restriction of the employee’s freedom of opinion depends on the position and the duties they have undertaken.
Obligation to refrain from conduct that constitutes prohibited discrimination or harassment
An ancillary obligation of the employee is also the omission of any behavior that constitutes prohibited discrimination (eg due to gender, racial or ethnic origin, age, religious and other beliefs, disability, sexual orientation). Likewise, the omission of behaviors that constitute violence and harassment in the workplace.
The employee should avoid such behaviors, despite the fact that they are not contractually associated with their colleagues, but only with the employer. The latter is otherwise entitled even to terminate the employment contract of the employee, who may adopt such, intolerable, behavior.
Off duty & off work environment behaviour
Work life is clearly distinguished from the employee’s private life. However, the employee’s contractual obligations may, exceptionally, extend to their off-duty behavior.
The above obligation arises, in particular, for employees of businesses, of a special political, moral, ideological direction.
Based on this assumption, it has been ruled that a doctor in a catholic hospital cannot legally publicly declare themselves an advocate of abortion (although these medical procedures are permitted by law, they are prohibited by catholic ethics and its ecclesiastical rules).
The off-duty obligations of employees depend, of course, on their position and duties within the business. Other are, e.g., the obligations of the spokesperson and others of the gardener.
Main obligation of the employee continues to be the provision of their work. In addition to the main obligation, however, They are also burdened with a series of other important obligations: the ancillary ones. The importance of the latter proves to be indisputable: the sanctions for the offender are also significant.
It is the duty of the employee, however, to respectfully fulfill his / her ancillary obligations, focusing, if nothing else, on the management, in good faith, of the issues related to his / her work.
Let us not forget: the defense of the legitimate interests of the business-employer by the employees seems, at the very least, necessary to achieve the goals and objectives of both.-
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (January 2nd, 2022).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.