There is an implied obligation on both employer and employee not to act in any way that is calculated to, or likely to, breach trust and confidence.
The concept of trust and confidence has developed over time through case law and can encompass a wide range of factors. While it is a mutual duty, allegations that trust and confidence have been breached are more commonly raised by an employee about the actions or behaviour of their employer.
A breach of trust and confidence can be a one off act or it can be something that amounts to the last straw; effectively the ‘straw that broke the camel’s back’.
If an employer fundamentally breaches the obligation not to damage trust and confidence, an employee may chose to accept that breach and treat the employment contract as repudiated.
That employee may then (if they have 2 or more year’s continuous employment) bring a constructive unfair dismissal claim on the grounds that they were effectively forced out of their job. Depending on the circumstances of the breach they could bring a discrimination claim, regardless as to their length of service.
If an employee breaches their duty to the employer, that breach could give rise to an allegation of gross misconduct and ultimately dismissal.
Examples of conduct by an employer that might amount to a breach of trust and confidence include:
- making unfounded negative comments about an employee,
- making it impossible for an employee to do their job (for example by giving them too much work or not responding to their requests for help with their workload),
- unfairly taking disciplinary action,
- exercising discretion (for example to award a bonus) in bad faith, and
- using (or permitting others to use) foul, offensive or discriminatory language in the workplace.
An employee may be found to have breached their duty of trust and confidence if they make disparaging comments about their employer on social media or falsely claim sick pay.
Acting reasonably and in an even handed manner at all times is the key to ensuring trust and confidence isn’t breached.
Employers would be well advised to ensure that they have up to date anti-harassment and anti-discrimination procedures, ensure these procedures are updated regularly and ensure that they are communicated to all staff and enforced where necessary.
A written disciplinary and grievance policy is imperative and managers should be given training so they know how to deal with such matters in order to stop those small niggles (that are present in all workplaces) becoming big Tribunal claims.
Employees are well advised to use the policies that are available to them and put any concerns they may have in writing at an early stage.
If you need advice on your employment situation or you would like to discuss your internal policies and training needs please contact Martin Williams or Samantha Dickinson on 01273 775533.