When two wrongs can make a legal right

Louise Walker
1st Oct 2014

A recent decision of the Employment Appeal Tribunal (EAT) has clarified that even if an employee is in material breach of contract, their employer remains bound by the implied duty to maintain their trust and confidence for as long as the employment relationship subsists.

Employment law tribunal cases


Resultantly, a breach by the employer of that implied duty can form the basis of a successful claim for constructive unfair dismissal, even where the employee breached the contract first.


In this case, the employee had materially breached his employment contract by sending inappropriate personal emails in breach of the employer’s email policy, which he himself had written. Whilst the employer was properly conducting investigations into the employee’s alleged misconduct, the employee resigned and sought to bring a claim for, amongst other things, constructive unfair dismissal.


The original Employment Tribunal determined that the employee could not bring a claim for constructive unfair dismissal because he was already in material breach of his employment contract. After a thorough review of the authorities on this issue, the EAT decided to follow a Scottish authority from the Court of Session and determined that the over-arching obligation of trust and confidence, which is crucial in the employment relationship, is not suspended or absent because one party has breached that obligation. Only when the other party ‘accepts’ the material breach and brings the contract to an end does the obligation cease.


The EAT did note however that where the employee was already in material breach of contract, this would be something the Tribunal would take account of in assessing compensation and the employee’s contributory fault could lead to a reduction of up to 100% in any award made.


The employee also tried to argue that his human rights had been breached by relying on Article 8 of the European Convention on Human Rights (ECHR) - the right to respect for his private and family life, a right which he claimed had been breached by his employer’s perusal of his emails. None of the emails were marked personal or private, which was specifically required in the employer’s email policy, but he had gone to the trouble of disguising the writing by using an unusual font, suggesting that he knew they may have been read at some point. This, coupled with the fact that he himself had written the email policy, led the EAT to conclude that that there had been no unjustified interference with his private life and that the employer had been legitimately investigating his conduct in an acceptable manner.


You can read the Judgment here.


You can read our expert comments on the case here.

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