When two wrongs can make a legal right – Expert Comments

Louise Walker
1st Oct 2014

A recent Employment Appeal Tribunal (EAT) decision ruled that an employer is has a duty to maintain an employees’ trust and confidence for as long as the employment relationship subsists, even if that employee is in material breach of contract.

Employment contract


This can result in a breach by the employer of this implied duty forming a successful claim for unfair dismissal, even if the contract was breached by the employee first.


An employee had breached his employment contract. Whilst the employer was properly conducting investigations into the employee’s alleged misconduct, the employee resigned and sought to bring a claim for constructive unfair dismissal. The EAT determined that the obligation of trust and confidence, which is crucial in the employment relationship, is not suspended because one party has breached that obligation, but only when the other party ‘accepts’ the breach and brings the contract to an end.


The case serves as a warning to employers that even where there is very clear evidence that an employee has committed an act of gross misconduct, the investigation and determination of disciplinary charges against the employee must be conducted in a way that properly maintains the employee’s trust and confidence in the employer, otherwise the employee may have remedies arising from the employer’s conduct.


Read our review of the case here.

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