“Every case is important, because it’s important to the client.” This was the advice that I received from a wise lawyer, when I was still a law student. I have remembered this advice and sought to apply it in my practice as a lawyer. At the heart of this advice is the recognition of the dignity of the client, of the other and what matters them, beyond myself and my own aspirations.
When I recognise the dignity of my clients- in my practice as a lawyer- I find myself in receipt of their trust. And that is something that matters to me.
Many of us will spend a significant portion of our lives in our workplace and trust is the solid ground of good working relationships.
To trust, is to believe that a person or place is safe and reliable and to have confidence is to have a sense of certainty about that.
The capacity to respect the dignity of the workforce is, I believe, a marker of an organisation’s humanity. And, the Law recognises this by implying a term of mutual trust and confidence into employment contracts. Where there is a fundamental breach of trust and confidence by an employer, this is one of the ways that an employee can assert that a fundamental breach of contract (‘a repudiatory breach’) has taken place. The employee can resign without notice in response to the fundamental breach and assert that as a matter of law they have been constructively dismissed. Where an employee has been employed for two years this can open the door to a claim for unfair constructive dismissal and if the employment tribunal deems that the dismissal was unfair considering the circumstances of the case. An employer can defend a claim for constructive dismissal if they can show a fair reason for the dismissal and evidence that they acted reasonably in all the circumstances.
Daniel Barnett shares a helpful summary of the law on repudiatory breaches of contract and in particular the law relating to the implied term of trust and confidence. You can listen to the podcast here. Key points within the podcast are:
At 5.00 – Examples from case law of what can and cannot constitute a breach of the implied term of mutual trust and confidence. For example a failure to provide an impartial appeal has been held to be a breach of the implied term of trust and confidence; Discrimination and harassment can constitute a breach of trust and confidence.
At 10.00 – ‘The Last straw doctrine’ a series of events or a course of conduct can collectively amount to a breach of the implied term of trust and confidence. The final incident in a chain of events need not be very serious, but must add something to the breach.
At 14.50 – An employee must resign in response to the breach to claim constructive dismissal and resign swiftly.
At 20.00 – What constitutes a reasonable timeframe in which an employee can resign in response to the breach depends on the specific facts of the case. Sometimes, it is appropriate for an employee to face breaches of trust in the workplace by facing them directly, looking at them squarely in the eye and showing them the red card. A claim for constructive dismissal is one of many legal pathways to do just that. If you need any support or advice with any aspect of employment law, then please do reach out to us, we will be more than happy to provide expert advice and support.