Commentary

(8) Extension of the obligation on to the employee?

Division AII Contract of Employment
| Commentary

(8) Extension of the obligation on to the employee?

| Commentary

(8)     Extension of the obligation on to the employee?

All of the above discussion has naturally been on the basis that the T&C term lies on the employer. It has often been said that the concomitant obligation on the employee is the implied term of loyalty, which (as seen at para [158] ff above) is well established but operates on its own specific rules. However, a question occasionally arises as to whether the T&C term itself could also apply to an employee, ie a duty of trust and confidence owed by the employee to the employer. In the abstract, this might make sense (though it might be questioned as to how much it would add to the wide duties already owed in that direction), but arguably it starts to become potentially dangerous to the employee interest when put into the context of dismissal law. The problem is that it can lead to employer arguments based on 'loss of trust' in the employee that could lead to easier dismissal. If an employer has specific objections to an employee (most likely through alleged misconduct, but possibly also on capability grounds) the law of unfair dismissal will usually expect the employer to investigate fully and establish 'guilt' up to the prescribed standard (in misconduct, usually positive and reasonable belief, based on reasonable investigation). The aim of this is to achieve the difficult balance between the employer's business need for acceptable staff and the employee's right to be treated fairly. What, however,

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