The term of trust and confidence

The following Employment practice note provides comprehensive and up to date legal information covering:

  • The term of trust and confidence
  • Dismissal in breach of trust and confidence
  • Alleging the employee breached the term
  • Relationship with express terms

The term of trust and confidence

Every contract of employment is treated as containing an imposed term of trust and confidence. This requires employers and employees not to conduct themselves, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The term can affect every aspect of the relationship between employer and employee and creates a 'catch all' means of describing unreasonable conduct in employment. It is a two-way duty, binding on both employer and employee.

Mutual trust and confidence has two different strands:

  1. treating each other with respect and civility

  2. not treating each other in a wholly unreasonable manner (it is not possible to say there is a positive duty to act reasonably)

Not all forms of unreasonable behaviour would be a breach of this term. It must be sufficiently bad that it would destroy or seriously damage the relationship of trust and confidence, not merely something that would irritate or cause a minor problem. However, bad behaviour or conduct in an extremely wide variety of acts or omissions can be a breach of the trust and confidence:

  1. failing to make a reasonable adjustment required by the disability discrimination legislation

  2. failing to notify an employee who was on maternity leave of a job vacancy for which she would have applied

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