The duty of trust and confidence
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.
What constitutes a breach of trust and confidence?
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’.
What happens when an employer breaches trust and confidence?
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.
Constructive unfair dismissal claims
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 also bring a discrimination claim, regardless as to their length of service.
What happens when an employee breaches trust and confidence?
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 breach of trust and confidence
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.
Employee breaches of trust and confidence
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.
Preventing breach of trust and confidence
Acting reasonably and in an even handed manner at all times is the key to ensuring trust and confidence isn’t breached.
Employer policies and procedures
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.
Advice for employees
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.
Contact our employment law team
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 223252
Frequently asked questions
What is breach of trust and confidence in employment?
Breach of trust and confidence occurs when an employer or employee acts in a way that is calculated to, or likely to, damage the mutual trust between them. This can be a single serious act or a series of smaller incidents that amount to a ‘last straw’. Examples include making unfounded negative comments, unfairly taking disciplinary action, or using offensive language in the workplace.
Can I claim constructive unfair dismissal for breach of trust and confidence?
If your employer fundamentally breaches trust and confidence, you may accept that breach and treat the employment contract as ended. If you have two or more years’ continuous employment, you can bring a constructive unfair dismissal claim on the grounds you were effectively forced out of your job. You may also bring a discrimination claim depending on the circumstances, regardless of length of service.
How can employers prevent breach of trust and confidence?
Employers should act reasonably and in an even handed manner at all times. They should ensure up to date anti-harassment and anti-discrimination procedures are in place, regularly updated and communicated to all staff. A written disciplinary and grievance policy is essential, and managers should receive training on handling workplace issues to prevent small concerns becoming tribunal claims.
