Vickipedia

MASTER AND SERVANT. The relation of master and servant is constituted in Great Britain entirely by contract; for there being-no status of slavery recognized in law, one person can only serve another with his or her own free consent. Being a mere contract, it may, like other contracts, be broken at will, subject only to the will consequence, that the party in the wrong is liable to pay damages for the breach. In England and Ireland, the engagement or hiring of a servant may be either verbal or in writing; but if the engagement is for more than one year, it must be in writing. If for an indefinite time, no writing is necessary. When a servant continues in the service after the first year, a renewal of the contract is presumed on the same terms. Sometimes is difficult to say whether an engagement of an indefinite kind is bythe year, or by the month or week; in such cases, a material fact is how the wages were to be paid, for if they are paid weekly, the presumption will be that the hiring was by the week, unless there are other circumstances to show that a yearly hiring was meant. The difference between a yearly contract and a weekly one is, that if the servant is discharged without cause during the year, he is entitled towages up to the end of the year; and on the other hand, if he leave without cause during the service, he is entitled to no wages at all.

A servant undertakes to have competent skill for the duties of the service, and is bound to use due diligence, and to conduct himself respectfully. He is bound to obey all lawful orders of his master during the engagement, if they are within the scope of the particular service for which he was engaged. Thus, a coachman is not bound to do the duties of a cook, and vice versa. Every servant is bound to take due care of his master’s property, and he is liable to an action at the suit of his master for gross negligence, and also for fraud and misfeasance. A master is not entitled to chastise a servant, whatever the age of the servant : maybe, though, in the case of an apprentice under age, a moderate chastisement is justifiable. The grounds on which a servant may be lawfully discharged are wilful disobedience, gross immorality, habitual negligence, and incompetence. If any person entice away a servant, and thereby cause loss to the master, the latter may sue such person for the injury. If the servant is a female, and is seduced, and thereby is unable to continue her service, the master may also bring an action against the seducer for any loss of service caused thereby; and on the same principle a master may bring an action against a third party who causes personal injury to the servant. In the case of the bankruptcy of the master, a preference is given to the servant’s wages if due and unpaid, but this extends only to two months’ wages, and the servant is an ordinary creditor for the balance beyond that sum. The death of the master is a discharge of the contract; and in many cases, the servant is not entitled to recover wages for the time actually served, though there is an exception as to domestic ” servants. If a servant is rightfully discharged, he is not entitled to wages for the broken time since the previous periodical payment of wages; and so in the case of the servant’s death during the currency of the term, the servant’s executors cannot recover payment for the broken time; but it is otherwise in the case of domestic servants. When a servant falls sick, the master is not bound to provide medical attendance whether the servant lives wider bis roof or not; but as in such cases a doctor is often sent for by the master without any express understanding between the parties, the master is frequently made liable on the ground that the doctor was sent for by and gave credit to the master.

As a general rule, the servant takes the risk of all the ordinary accidents attending the particular service; if he suffered from an accident met with in the course of the service, the master was not till lately liable for the consequences, unless there wag some personal negligence on his part. The law in such cases has been much changed by the passing of the Employers’ Liability Act of 1880. Now the workman or, if the injury results in death, his legal personal representatives, shall have the same right of compensation and remedies against the employer as if he had not been in the employer’s service, in the following cases : If the workman suffer injury by reason of defect in the employer’s works or machinery or plant; by the negligence of any other superior workman; by the negligence of “any other servant in charge of locomotives or signal-points. Where a servant injures a third party, the rule remains, that the master is liable, if the servant at :lie time was acting within the scope of the master’s orders, expressed or implied. Hence, if a coachman carelessly run down a person on the highway, or do injury to another, the master is liable; but if the coachman was driving the master’s carriage without or contrary to the orders of the master, the servant alone is liable. So the master is not in any way responsible for the crimes or criminal offences committed by his servant; yet sometimes he s involved in fines. The above are the general rules as regards servants generally; but in England there is a distinction in many instances observed between domestic servants and other servants. The leading distinction is, that if nothing is said as to the length of service, it is presumed that the service can be terminated at any time, on giving a month’s notice on either side, or in case of the discharge of a domestic servant without notice, then on payment of a month’s wages. It is often popularly thought that a domestic servant cannot be turned out of the master’s house at a moment’s notice, even on paying a month’s wages, but this can always be done with or without cause. In case of discharge without cause, the servant is entitled to a mouth’s wages, but not board wages; she also gets wages only up to the master’s death. He is not compelled to give a character to the servant; it is entirely optional; but if he does so, then it must be a true one, otherwise an action will lie for defamation. But if a master without malice, and acting bonafide, gives an untrue character, he is not liable, for the communication is held to be privileged. If a master knowingly give a false character to a servant who is engaged by a third party on the faith of it, and robs such third party, the latter can sue the former master for the damages. Persons personating masters, and giving false characters, and servants using such false characters, are liable to be summarily convicted, and fined £20.

In general, a servant, if he refuse to enter the service, or leave it without cause, is merely liable to an action of damages for breach of contract, which is no remedy at all, as few servants are worth the expense of a suit. As this conduct, however, might often cause great hardship to masters, especially where they are employed in trade or manufactures, statutes have been passed which give a power to justices of the peace to compel the servant to remain in the service until he give the legal notice to leave. This was formerly done by punishing the servant who left the service without just cause by imprisonment. This law, complained of by workmen as one-sided, was modified by the Employers and Workmen Act (1875), which gives County Courts enlarged powers in regard to payment of money, rescission of contract, and taking of security as between employers and workmen; and by the Conspiracy Act (1875), which, while deciding that in trade disputes no combination shall be indictable if the act contemplated done by one person would not be so, makes special criminal provision in case of persons, employed by gas and water companies.

In Scotland, the law as to master and servant differs from the above in several particulars, of which the following are the most important. With regard to domestic servants, in towns, if nothing is said, then the hiring is for half a year, and cannot be put an end to without forty days’ warning before the end of the half year; and if the servant is dismissed without just cause, he or she can claim not only wages but board-wages till the end of the term. In case of the master’s death, the servant can claim wages for the whole of the current term, but is bound in that case to serve the executors, or look out for another situation. In case of the master’s bankruptcy, the servant is a privileged debtor for the wages of the current term. In most other respects, the law as to servants is the same as in England. The statutes enabling justices of the peace to imprison defaulting workmen and artificers, have been modified.

The Act 30 and 81 Vict. c. 141, called the Master and Servant Act, 1867, having caused profound dissatisfaction amongst workmen, a Royal Commission was appointed to investigate and report. The first two sections were found to be objectionable because they conferred a power to inflict simple imprisonment as the penalty for breaking a purely civil contract. The 14th section was found to be equally open to objection, as it authorized imprisonment for three months, with hard labor, in cases of an exaggerated character. Upon the above report are based the existing Acts—the Employers and Workmen’s Act (38 and 39 Vict. c. 90) and the Conspiracy and Protection of Property Act (id. c. 86)—which repeal that of 1867, and came into force on September 1, 1875. The first Act, which is divided into five parts, empowers County Courts, in respect of disputes between employer? and workmen to make orders of payment of money; to set off one claim against another, whether liquidated or unliquidated; to rescind any contract, and to accept in room of damages security for so much of the contract as remains unperformed. A Court of Summary Jurisdiction may exercise all the powers as above when the sum in dispute is under £10. Disputes between master and apprentice may also here be tried as to indentures or contracts. The term ‘workman’ in this Act does not include a domestic or menial servant, but any person engaged in manual labor, under or above 21 years of age, who has entered into, or works under a contract for his employer. It does not apply to seamen or apprentices to the sea service. The second, or Conspiracy Act, in relation to trade disputes, declares that in an agreement or combination of two or more persons they cannot be indicted for conspiracy to do that which, if done by any one singly, would not be punishable .is a crime. This does not exempt from punishment any conspiracy punishable by Act of Parliament, nor alter the law as to riot or unlawful assembly. But crime under this section is defined as an offence punishable either on indictment or summarily, by imprisonment, either absolutely or as an alternative for some other punishment. The imprisonment is limited to three months. Workmen breaking a contract in connection with the supply of gas or water, are liable to conviction either summarily or on indictment, and the offence is punishable by a fine of £20, or imprisonment for three months, with or without hard labor. Wilful breach of contract or of hiring, with the probable consequences of danger to human life, incurs a penalty of £20, or imprisonment for three months with or without hard labor. Should a master who is legally liable for the provision of food, clothing, &c., of a servant or apprentice neglect to do so, he incurs a penalty not exceeding £20. The offender may object to be tried and may be indicted. The parties, and their husbands and wives, are competent witnesses. In Scotland, proceedings may be on indictment either in Justiciary or Sheriff Court.