Essay Example on The duty of mutual trust and confidence is implied as a fundamental Term

The duty of mutual trust and confidence is implied as a fundamental term into all employment contracts and the duty bounds both employers and employees This duty is embedded within the general duty of obedience co operation and care is established in Common Law and entrenched in the English Legal System A duty is imposed on employers and employees to behave in a harmonious manner by expressly stating that neither party to the employment contract will act in a way that could possibly destroy or damage the working relationship This is nevertheless limited by the express terms of an employee's contract If either party is found to be in breach of this duty without a justifiable reason it can essentially allow the other party to take legal action The implied duty is comprised of a range of responsibilities and both employers and employees must appreciate the duties that they owe to each other It can be difficult to detail the complexity of employment relationships within contractual clauses so the law undertakes an obligation to impose extra responsibilities which demonstrate how they believe employment relationships should function The main aim of this is to ensure that employers and employees will not act in a way that would amount to breaching the fundamental duties which are imposed by the law In layman's terms the implied duty of mutual trust and confidence is ultimately the principle that all employees and employers need to act in a reasonable manner toward one another They owe each other a duty of sensible behaviour and this responsibility is of a legal nature which if breached is actionable in law 

The question we must therefore ask is whether the duty of mutual trust and confidence is fair and whether it fulfils its purpose This can only be inferred by looking at the relevant case law and understanding what the purpose of the duty actually is and whether the law goes as far as is necessary to implement the duty and reflect its purpose or does it extend further than is reasonably necessary Primarily we must understand the nature of the duty and then identify if it fulfils its aims or at least seeks to In practice employers and employees must essentially avoid acting in a negligent manner as the duty can be breached through mere carelessness The duty is of a mutual nature in that it bounds both employers and employees and seeks to protect both parties against unlawful behaviour However most cases brought to the Employment Tribunal are brought by employees who wish to bring a case of constructive dismissal on the basis that their employer is in breach of the duty In order to have a strong case and be successful in their claim an employee must show that their employer has behaved in a way that the conduct is likely to abolish the relationship of trust and confidence between them An employer may be found to be in breach even if the effect of their actions was not intended however if the court finds there is reasonable or just cause for the employer to have acted in a particular way there will be no breach The duty is fundamental in its purpose and cannot be excluded from any employment contract nor can it be verbally eliminated from the contract under any circumstances it is arguably a legal entitlement The law on the implied duty of mutual trust and confidence currently stands as in situations where an employer breaches their obligation under this duty the employee is permitted to treat their contract as repudiated as a consequential result of that breach 

Effectively any repudiatory breach of the implied duty made by an employer will allow an employee to resign from work by regarding themselves as having been dismissed following this they are then able to bring a claim for constructive dismissal on the basis that they were forced to resign due to the unfair treatment because they had no other option as subjecting themselves to tolerate the behaviour would be unreasonable The burden for proving that that the employer committed a breach of a serious nature and that the behaviour was so unacceptable that they consequently felt forced to resign solely due to that breach falls on the employee The employee can only bring such a claim if they have two years or more continuous employment with their employer However in some cases an employee may be allowed to bring a claim irrespective of their length of service on the basis that their employer has acted maliciously has harassed them has undermined their authority or victimised them If an employee is already in a serious breach of their contract and the employer is not aware of it they are not in a position to make a claim of constructive dismissal