In this case the High Court has laid down useful guidance with regard to what constitutes trust and confidence (implied in all contracts of employment). In essence, the implied term of trust and confidence means that both employer and employee must not, without good cause, act unreasonably towards the other. The Court made the following observations:

  • A board of directors is entitled to discuss an employee in a negative manner without breaching the term of trust and confidence, as it is merely the brain of the company and the obligation of trust and confidence does not go so far as to control thoughts.
  • Engaging in a campaign of vilification against an employee in the press will amount to a prima facie breach of trust and confidence – although there may be a rebuttal if the employee has, himself, first acted in breach of trust and confidence.
  • There may be a proper case to put out a press release which could even include confidential information when an employee resigns and is on garden leave.
  • An employee is not entitled to accept a repudiatory breach of the trust and confidence term in circumstances where he is himself in repudiatory breach of the same term

If this case is to be followed it would mean that an employer may not be liable for constructive dismissal if the employee has also breached the term of trust and confidence.

RDF Media Group v Clements