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‘Critically evaluate the common law duty of mutual trust and confidence of employees
and employers for each other. Do you consider they are justifiable?’
The most valuable component in employment law, is the common law duty of mutual trust
and confidence between employees and employers. This particular essay shall study and
discuss the various duties that employers and employees have towards each other. These
duties shall then be critically evaluated from each argument to determine whether they are
justifiable and tolerable in the employment contract that had been drawn up between each
party. This essay will examine various certain cases in which there has been some kind of
dispute, and a final opinion shall be given on whether the outcome was fair-minded or not.
In more recent times its now more reputable that in the employment contract, neither party
should damage the reputation of the other in any way, that can potentially breach the
mutual trust and confidence which exists between them. This essentially says that both
sides should be professional in terms of meeting the requirements of the employment
contract. However, the contract does not cover some unwritten terms.
‘Implied terms’ are terms that are not specified in the contract of employment under
ordinary terms. They are, like previously said, ‘unwritten’ terms which are thought of as
being obvious and would have been implemented in the full contract, but due to it not being
possible to include every single term within the contract, they were left out. Because of
these, there are missing parts to the employment contracts and these can potentially cause
disputes and disagreements between employee and employer. “The “Business Efficacy” Test
provides that terms will be implied at common law only if they are “obvious and necessary”,
but not if they are merely “desirable and reasonable””
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.
The expression, ‘common law’ has various different meanings to it. However, there are two
specific senses that stand out above the rest. The first is in the sense of common law
‘liability’. The majority of the original foundations of employment law lies within common
law contract. So much so that, “before the modern statutory regime there was little
recognition of a subject called ‘employment law’ and the employment relationship was
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The Moorcock (1889)
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viewed as merely one type of contract.”.
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The second meaning of common law, is in the
sense of ‘case’ law. Much of ‘case’ law is thought of as the interpretation of the now
applicable, ‘myriad of statutes’.
Mutual trust and confidence is one of the most significant aspects of the implied terms in a
contract. It was introduced by common law to help boost the co-ordination and co-
operation between both employee and employer. Unfair dismissal was the main issue as to
why this was enforced. An example case of, said, unfair dismissal is Robinson v Crompton
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Parkinson. This particular employee, who had an overall clean work record, and had a good
reputation within the business, was accused of theft within the company. Robinson turned
out to be innocent, resulting in him requesting a formal apology from his employer. This
request was refused by Crompton Parkinson, which then consequently led to Robinson’s
departure from the company. He then made a claim against Crompton Parkinson for unfair
dismissal. However, the claim was overseen by The Employment Appeal Tribunal (EAT) as
Crompton Parkinson displayed adequate reason for their refusal, as there was no evidence
to be found, justifying their belief in dishonesty. This just goes to show that no matter how
reputable the employee may be, if the element of trust is somewhat broken, the
