Employment Law Advocates

I have had some more thoughts about why a breach of the impied term of trust and confidence can never result in a fair dismissal. My previous post notes that a breach of the implied term¬†is defined as¬†conduct which is likely to destroy or seriously undermine trust but there is¬†a further part to the test, taken from Malik v BCCI, that there must not be reasonable or proper cause for that conduct. Conversely, according to Berriman v Delabole Slate, for a constructive dismissal to be fair, it is necessary that the employer show “the reasons for their conduct which entitled to employee to terminate the contract.”¬†When the constructive dismissal¬†is due to a breach of the implied term,¬†the employer must both have no reasonable or proper cause for their conduct while, at the same time, that conduct¬†must¬†be¬†for a potentially fair reason¬†as well as¬†fair in all the circumstances. This is difficult to imagine.

What is unusual about the implied term is that the reason for the conduct matters. If a person’s pay is reduced or¬†his place of work is moved, whether there is a fundamental breach does not depend on why the changes were made. For the implied term of trust and confidence,¬†this is¬†very important so it must be distinguished accordingly.