Law Illness 100611

Illness - Breakages - Wages - Medical Attendance

Illness - Grounds for Discharge

The temporary illness of a servant does not rescind the contract and justify dismissal, unless there is an express agreement to that effect, and it may be stated shortly that it is only the permanent illness of a domestic servant which would justify his discharge. The engagement of a waiter for a banquet which he was unable to attend, owing to a temporary indisposition, and the illness of an actress on the night of the performance, would justify the engagement of others to replace them, because in each instance the purpose for which they were engaged goes to the very essence of the contract.

Deduction for Breakages

A mistress is not, as popularly supposed, entitled to keep back out of the servant's wages the value of things lost or broken by the servant, unless there is a distinct agreement between them to that effect.

Extra Work

In the absence of an express agreement, a servant is not entitled to extra remuneration beyond his ordinary wages for any extra work or duty he is called on to perform, unless such extra work or duty is clearly outside that for which he was engaged, as, for example, if an indoor servant is called upon at harvest time to assist in getting in the hay.


A uniform or suit of clothes supplied to the servant to wear while in service is prima facie the property of the master or mistress, and the servant, on leaving, is not entitled to take them away, unless there is an arrangement to that effect. In the case of male domestics, the contract often stipulates for suits of clothes as well as wages, and in such cases the servant is entitled to the clothes when leaving.


A servant temporarily incapacitated is entitled to his wages during his enforced absence. This has always been the case, and now, if the absence was due to an accident or to some infectious disorder, the servant would be entitled to compensation under the Employer's Liability Acts Domestic servants are entitled to wages up to the day of dismissal. Properly speaking receipts should be taken for the payment of wages, but when a servant has left a situation lor some time without making any complaint or application for the non-payment of wages it will be presumed that they have been paid'. Claims for wages are barred after six years.


A master or mistress who makes an advance to young servants on account of their wages must see that the money is properly expended, or they may find themselves liable to pay it over again. A master who advanced money to a young female domestic, who spent it in buying a silk dress, lace, and other articles to the value of 6, was not allowed to set off against her claim for wages the money paid, except that part of it which went in the purchase of necessary articles of attire.

Medical Attendance

It is the duty of the parish authorities to supply a domestic servant with proper medical attention, for which they are not entitled to recover the cost from the employer. If a master calls in his own medical attendant to attend his servant who is ill, he is responsible for the payment for the medicines and attendance, and is not entitled to deduct the amount of the same from his servant's wages.

In the case of an adult servant, it would be the duty of the master not to neglect him in illness, and to give notice to the parish authorities through their medical officer; but, apart from contract, he is not legally bound to provide medical attendance for his servant. In the case of young servants, however, to which the master or mistress may be said to stand in the relation of parent, the necessary food, clothing, medical aid, and lodging must be provided.

Chastisement Of Servants

There is little doubt that the chastisement, however mild, of an adult servant by a master or mistress would not be tolerated. Whether a master is justified in inflicting corporal punishment on a young servant it is difficult to say; it might be urged that the master stood in the relation of a parent towards the child, or that he had the parents' authority for doing so. An upper servant, however, has no right to chastise a lower one.

Enticing Away Servants

To entice away a servant from his service, by the promise of better wages and so forth, before his time has expired is an injury to his master, for which he has a right of action for the loss occasioned him by the deprivation of the services of his servant. But it is not actionable to persuade a servant to leave at the end of his time, although the servant may have had no intention of quitting his master's service at the time when the proposal was made.

Rights Of The Master

For breach of contract, expressed or implied, and for wanton damage, the master has the same rights and remedies against his servant as he would have against any other person.

Married Women's Property

A woman, on her second marriage, holds the property of which she has ended the restraint, as her separate property, under the Married Women's Property Act.

Equity has no power to dispense with the restraint, even for the benefit of the married woman; but this has been modified by the Conveyancing Acts, and the court may, with the consent of a married woman and if it appears to be for her benefit, make an order binding her separate property, or some part of it, although she is restrained from anticipation. The court may remove the restraint on the request of a married woman to enable her to pay off her debts, but will not in general do so where such debts have been incurred by extravagance.

The consent required by the Act need not be given by an acknowledged deed. Under the Married Women's Property Act, 1893, the court may order the costs of litigation of a married woman to be paid out of her separate estate which she is restrained from alienating.

Equity to a Settlement

By marriage the husband becomes entitled to all his wife's personal property, not being separate property. Where, however, the husband, unable to recover at law, was compelled to resort to equity in order to retain the property, equity would only lend its aid and allow him to receive it subject to his making a fair settlement to his wife out of it; that is, subject to the wife's ' equity to a settlement." This equity to a settlement does not depend upon any right of property in the wife, for the amount is in the discretion of the court, and can only be claimed for herself and children. The right of the wife, which was originally against the husband only, was extended to his trustee in bankruptcy and to purchasers from him for valuable consideration.

The Married Women's Property Act

All property belonging to a woman at the time of her "marriage is at her absolute disposal by will or otherwise, provided she was married on or after January 1, 1883.. or, being married before that date, her title to it accrues after that date. All property devolving upon her after marriage or acquired in any trade, business or employment which she carries on separately from her husband, including wages and earnings of any kind, and money acquired by the exercise of any literary, artistic, or scientific skill, is the sole property of the wife as if she were a single woman. And all money deposited or invested in any bank, savings bank, building society, or standing to her name in any stocks or shares, or in her name jointly with that of any person other than her husband, is to be deemed her sole property.

A married woman is now liable upon all her contracts to the extent of her separate property. The creditor of a married woman may obtain payment out of any property not subject to restraint which she may possess at time of execution. A married woman may enter into a contract with her husband. She may now dispose of her separate property by a will made during coverture.


A married woman trading separately may be made a bankrupt in respect of her separate property as if she were a single woman; but she cannot be made bankrupt unless she is trading separately, and although so trading a bankruptcy notice cannot be issued against her, not even if trading under the name of a firm. But she may be made bankrupt after she has ceased to so trade in respect of debts incurred whilst trading.

A single woman against whom a bankruptcy petition has been presented, can avoid being made a bankrupt by getting married before the hearing of the petition.

Husband's Bankruptcy

If a married woman lend money to her husband for the purposes of his bush and he is declared bankrupt, although she is entitled to prove in the bankruptcy, her claim will be postponed to all his other creditors for value.

This rule does not apply to a loan made by the wife to a firm in which her husband is a partner, or to the husband for purposes other than his business, or to money paid by her as surety for her husband. To be continued.