Eleanor Finch
The implied term of trust and confidence (ITTC) is a mutual obligation that applies to both employers and employees. It covers the concept of fair dealing and requires both parties to act respectfully and honestly towards each other. A breach of the ITTC may be regarded as a repudiation of the employment contract. Examples of an employer's breach of the duty of trust and confidence include unjustified criticism of an employee, failure to investigate complaints, reprimanding a senior employee in front of colleagues, and unreasonable workplace monitoring. Employees may breach their duty of trust and confidence by making disparaging comments about their employer on social media or falsely claiming sick pay. If an employer fundamentally breaches the obligation not to damage trust and confidence, an employee may be justified in treating their contract as repudiated and claiming constructive dismissal.
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What You'll Learn
Unjustified criticism
Another example of unjustified criticism is reprimanding a senior employee in front of their colleagues. This can be humiliating and damaging to the employee's reputation and may constitute a breach of the ITTC. Similarly, giving unjustified warnings to an employee with the intention of disheartening them or driving them out of their job can also be considered a breach.
It is important to note that a breach of the ITTC does not have to be a single incident but can be a pattern of behaviour over time. For instance, continual criticism of an employee without reasonable cause can amount to a breach. In such cases, the Employment Tribunal will consider whether the conduct was 'calculated or likely to destroy or seriously damage trust and confidence', rather than focusing on the intent of the breaching party.
If an employer is found to have breached the ITTC through unjustified criticism, the employee may be justified in treating their contract as repudiated and claiming constructive dismissal. This means that the employee can resign and claim that their employer's conduct constituted a fundamental breach of contract, forcing them to leave their job.
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Failure to investigate grievances
The implied term of trust and confidence (ITTC) is a mutual obligation that applies to both employers and employees from the commencement of the employment relationship. It covers the concept of fair dealing on the part of the employer and is included in every employment contract in the UK, either implicitly or explicitly.
Failure to investigate an employee's complaints or grievances may constitute a breach of the ITTC. This is because employers are obliged to provide their employees with a fair and impartial grievance procedure. A failure to seriously consider a genuine grievance or to operate an ineffective grievance procedure could be grounds for constructive dismissal.
In the case of Morrow v Safeway Stores [2002] IRLR 9, the Employment Appeal Tribunal held that "conduct which amounts to a breach of the implied term of trust and confidence will mean that there has been a fundamental or repudiatory breach going to the root of the contract." This means that the employer must not act in a harsh, oppressive, unreasonable, unfair, capricious, or arbitrary manner during the grievance procedure or at all, as this may give the employee the right to resign due to the employer's failure to observe the "mutual trust and confidence".
It is important to note that the breach of the ITTC does not have to be a single incident. A series of minor breaches, with the latest being the "last straw" for the employee, can also constitute a breach. However, if there is no "last straw act", the employee will not be able to rely on the employer's earlier breaches of contract to find a claim for constructive dismissal.
If an employee believes that their employer has breached the ITTC, they may be justified in treating their contract as being unlawfully breached, which may enable them to resign and claim constructive dismissal.
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Unfair disciplinary procedures
For employers, this includes the use of disciplinary procedures in a way that is oppressive. For example, finding an employee guilty of gross misconduct without believing that they committed it or imposing disproportionate punishments. Suspending an employee without proper investigation or as a “knee-jerk” reaction may also breach the ITTC. Employers should also be mindful of their obligation to act reasonably and in an even-handed manner at all times. This includes not making unfounded negative comments about an employee, ensuring they can perform their job, and not reprimanding senior employees in front of their colleagues.
Employees can also breach their duty of trust and confidence, for instance, by making disparaging comments about their employer on social media or falsely claiming sick pay.
If either party breaches the ITTC, this may be regarded as a repudiation of the employment contract. Employees may resign and claim constructive dismissal if their employer breaches the ITTC. However, employers who believe trust and confidence have broken down should focus on the underlying reasons and select a more conventional reason for dismissal.
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Unfair monitoring of employees
For instance, in the case of St Francis Hospice v Burn, an Employment Tribunal found that an employer acted unreasonably when they refused an employee's request to be accompanied at a meeting with management. The refusal was deemed a breach of the implied term of trust and confidence, as the employee had been highly anxious about attending the meeting due to an extensive period of sickness absence.
It is important to note that the breach of trust and confidence does not have to be a single incident but can be a pattern of behaviour or the "last straw" that effectively breaks the camel's back. This includes patterns of oppressive disciplinary procedures, such as finding an employee guilty of gross misconduct without sufficient evidence or imposing disproportionate punishments.
Employers should be mindful that their conduct should not be calculated or likely to destroy or seriously damage the relationship of trust and confidence with their employees. Unfair monitoring practices can lead to employees feeling disheartened and forced out of their jobs, resulting in potential claims of constructive dismissal.
To avoid such breaches, employers should ensure they act with reasonable proper cause and treat their employees fairly and in an even-handed manner at all times.
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Verbal abuse
- Insults and derogatory remarks: Using offensive language to demean or humiliate someone can create a hostile work environment and breach the implied duty of trust and confidence. This can include sexist, racist, or otherwise discriminatory remarks, as well as personal insults intended to undermine an individual's confidence or self-worth.
- Threats and intimidation: Verbal threats, including those of physical violence or job-related repercussions, can constitute a clear breach of trust and confidence. Intimidation through verbal means, such as raising one's voice, using aggressive body language, or engaging in bullying tactics, can also fall under this category.
- Bullying and harassment: Repeated instances of verbal abuse, whether directed at a single individual or as part of a wider pattern of behaviour, can amount to bullying or harassment. This can involve persistent criticism, belittling comments, or unreasonable behaviour that creates a hostile and offensive environment, breaching the duty of trust and confidence.
- Inappropriate jokes and offensive language: The use of offensive or inappropriate language in the workplace, including sexist or racist jokes, can constitute verbal abuse and breach the implied duty. Even if the comments are not directed at a specific individual, they can still create an offensive work environment and lead to a breach of trust and confidence.
- Unreasonable demands and constant criticism: While criticism can be constructive, constant criticism or setting unreasonable expectations can become a form of verbal abuse. This can involve frequent public criticism, unrealistic work demands, or consistently undermining an employee's abilities, leading to a breach of trust and confidence.
- Retaliation and abusive language in response to complaints: When an employee raises a concern or complaint, responding with abusive language or threats can be a clear breach of trust. This includes retaliatory behaviour, such as demotion, reduction in pay, or adverse changes to work conditions, as well as verbal abuse intended to punish or deter employees from exercising their rights.
It is important to note that the impact of verbal abuse is crucial. Even a single severe incident can be sufficient to breach the implied duty of trust and confidence. Additionally, the context, frequency, and severity of the verbal abuse will all be considered when determining a breach.
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Frequently asked questions
The term 'breach of trust and confidence' or 'ITTC' (Implied Term of Trust and Confidence) refers to a breach of the mutual obligation between an employer and employee to act respectfully and honestly towards each other and not in a manner that is likely to damage or destroy the relationship of trust and confidence between them.
Examples of conduct by an employer that might amount to a breach of trust and confidence include:
- Unfounded criticism of an employee over a period of time
- Failure to investigate an employee's complaints or grievances
- Reprimanding a senior employee in front of other employees
- Unreasonable and unjustified workplace monitoring of employees
- Giving unjustified warnings to dishearten an employee and drive them out of employment
- Refusing an employee's request to be accompanied at a meeting with management
Examples of conduct by an employee that might amount to a breach of trust and confidence include:
- Making disparaging comments about their employer on social media
- Falsely claiming sick pay
- Using disciplinary procedures oppressively
- Acting in bad faith
If you believe there has been a breach of trust and confidence, it is essential to seek specialist legal advice right away. A breach of the ITTC may be regarded as a repudiation of the employment contract, and an employee may be justified in resigning and claiming constructive dismissal.
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