Freedom to Care Return to INDEX
Implied Term of Trust and
Confidence
A.
I. Hannah
NOTE This article is taken from 'Employment
News' (Brachers Solicitors) Summer 2001 and its appearance here does not
imply any endorsement by Brachers of the policies and objectives of Freedom
to Care. For our referral to Brachers click here:
legal
assistance . For Brachers' own web site go
to:
Twenty years ago it was “master and
servant". Now it is “employer and employee”. The next
and latest subtle move ensuring employment reflects modern social conditions
is the implied term of trust and confidence (the Term), now used as a catch-all
clause for complaints by the employee against the
employer.
Where an employer humiliates an employee,
or acts capriciously by for example suspending him when there are insufficient
grounds to do so, the Term is breached. The employee may then treat the breach
as a repudiation and accept by leaving and claiming constructive dismissal,
or staying but with a view to finding an alternative ground for compensation
e.g. a discrimination claim if applicable.
In the context of health and safety, an employer
traditionally owed a common law duty of care to prevent injury to an employee
where such injury was foreseeable by act or omission in the course of employment.
A contractual term was implied in employment contracts (or was express) to
the effect the employer would take all reasonable precautions to prevent
injury to the employee. Personal injury law flourished in those
occupations involving manual handling, machinery and physical effort
where the usual consequences of breach were physical
injury.
In 1995 it was thought the law was extended
by the case of Walker v
Northumberland County Council [1990]
when a social worker obtained compensation for depression and stress
when grossly overworked. All that case said in fact was that there was no
distinction between physical injury and a medically recognised psychiatric
injury.
By 2000 the Court of Appeal in Gogay v
Hertfordshire County Council [2000]
recognised that where a breach of the Term had foreseeably resulted
in psychiatric injury the employee was entitled to damages. This arose out
of an unjustified and unreasonable suspension pending an investigation into
an (ultimately unfounded) allegation of a care worker’s sexual abuse
of a child in care. The employee fell ill, but was not dismissed. She obtained
substantial damages for personal injury.
Where, however, an employee is wrongfully
and summarily dismissed, the House of Lords has held in Johnson v Unisys
Ltd [2001] that the damages for dismissal are simply limited to the notice
period. The implied term of trust and confidence does not apply to
dismissal."