Implied Term of Trust and Confidence

[Chambertin]

Hi there, as I understand it, the implied term of trust and confidence has no statutory basis and therefore no statutory guidance on enforcement.

claims of breaches of the implied term of trust and confidence are heard in claims of unfair dismissal. What is the forums understanding of a judges discretion to hear claims of breaches of the ITTC where there has not been any corresponding dismissal?

i am aware that judges usually don’t entertain such claims outside of dismissal claims as a matter of best practice but is there any actual legislation that prevents a tribunal from hearing these claims? So bushes have any discretion in this matter or are their hands tied by an official enforcement protocol?

If so, do you know where that rule can be found? With ITTC breaches not being found in the legislation it is impossible to pin down any actual hard roles concerning this.

Many thanks in advance.

[ULA]

The concept developed over time of the implied duty of trust and confidence which means that both employers and employees are bound by an implied term that they will not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between them.

Due to the nature of the implied duty of trust and confidence, any breach of this duty will be repudiatory which therefore permits that a breach by the employee may entitle the employer to terminate the contract of employment, a breach by the employer may entitle the employee to resign and claim constructive dismissal.

I have not known the implied duty of trust and confidence to be used in employment tribunal claims unless the contract has been terminated, typically via the employee claiming constructive unfair dismissal. I am also not aware that the jurisdiction of an employment tribunal covers a breach of the implied duty of trust and confidence without a dismissal situation arising.

In addition, section 8.1 of the ET1 form that needs to be completed following Early Conciliation, requires details of whether the claim is for unfair dismissal, discrimination, redundancy, being owed money or some other claim that the ET can hear, which would therefore necessitate detailing an issue which comes under their jurisdiction.

[Chambertin]

Hi ULA and many thanks for the reply. I too am aware that judges would not normally hear these claims outside of dismissal claims but I'm looking for something solid that says judges are not afforded discretion in these matters. With the ITTC not being part of any legislation there is obviously no written rules on how such claims are to be enforced. Or is there? Is there a legal restriction on judges in this matter or is it simply an unwritten rule/best practice?

Thanks again

[atticus]

Very often with questions such as this it is helpful to know what is going on and what you are driving at, so that we can give answers that are useful to you.

[dslippy]

There is much law which is embodied in case law only. This may well be such a case.

The concept of implied duty is such that there is no tight definition - which results in judges wrongly appearing to have wide discretion.

[Stuman]

Hi can someone help with advice

[dslippy]

You are clearly wanting to do something peculiar with the claim, but have not explained it or set it out. What can we do?

[Chambertin]

Hi, thanks all for the replies. I'm not wanting to do anything peculiar with the claim. The House of Lords approved definition reads “the employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”

My employer has purposely done such a thing in multiple ways. I don't want to resign though as I'm not in the wrong - they are. I want to put an end to their conduct which is calculated to destroy and seriously damage the relationship of trust and confidence and to make them restore the relationship. I don't see why such a formulation as above must be accompanied with an actual dismissal. I would certainly be entitled to leave, but I'm not leaving on principle.

The exact details don't matter as it is not case specific - I'm looking for any hard rules which state that a Judge is afforded no discretion to hear claims relating to the ITTC without an accompanying dismissal.

A good point is made above regarding case law vs legislation but I've looked high and low and found no such prohibition on Judges discretion. If it can be shown to me that a Judge has no discretion in this matter, then it's all good and I'll drop it but nothing about the wording of it, nor any legal stuff on the web leads me to believe that such a decision is outside of the Judges hands.

Thanks for your consideration.

[dslippy]

The recognised remedy for undermining the relationship of trust and confidence is for the employee to leave. It is exactly saying 'That is enough, I am off', and the suing for unfair dismissal. If he stays, he is saying that 'Yes, my employer has behaved badly, but not so badly that I cannot continue'. In other words, he has not undermined the relationship to teh extent required. The definition is circular.

[Chambertin]

Hi Dslippy, many thanks for the reply again. Leaving isn’ta remedy, it’s allowing yourself to be driven out by improper behaviour. The ITTC is active throughout the course of employment so it should be permissible to make such claims in order to salvage the relationship by halting the breach.

Nevertheless, can I infer that there is no guidance for judges on this matter that you are aware of?

I’ve certainly not been able to find any and I’ve looked and looked, although I don’t have an account with LexusNexus or anything, which would have probably been more fruitful.

[dslippy]

There is no guidance because the issue only arises when somebody walks out.

Think of it the other way around. The employer's remedy for gross misconduct is instant dismissal. If the employer chooses some other way of dealing with the alleged breach, then tey are saying that it was not gross misconduct.

[Chambertin]

So if there’s no guidance then there is nothing preventing a judge from hearing those claims?

The judge in fact DOES have discretion, which they can choose to use or not use, but the discretion is theirs. They do not have a prohibition in this regard.

I’ll respectfully disagree that not resigning amounts to a tacit acceptance of breaches of ITTC. A breach of implied terms can only occur during employment as it is an active component throughout the duration of a contract.

Having a rule in place - even just an unwritten rule - that says that you must resign your post in order to hold your employer to account for wrongs they do seems to penalise employees for taking principled stands.

i imagine whatever powers that be wouldn’t dare commit such a condition to writing as it legitimises employers being able to hound out their employees by acting completely inappropriately whereas justice, were it to be done, sees the right one punished.

Imagine if you had a team of people whom you wanted to make redundant but couldn’t afford all their redundancy payments. You could calculatedly behave in a manner designed to break all their confidence and force them to resign in protest where the only risk to you is actually a win - passing them much less in ITTC remedy than you otherwise would have through redundancy.

Making resignation a condition of bringing such a claim is manifestly biased against the claimant when the claimant should be able to force the employer to simply halt their breaches.

i suppose it makes a difference if you are going after some financial reward in the Tribunal or not. If there’s no financial element to the ITTC claim, just principle alone, then a judge should absolutely allow it. There’s no cost to the respondent other than a finding that they have behaved in such a manner and should cease.