Breaches of the implied term of trust and confidence will most commonly arise from the conduct by an employer directed toward an employee. However, if conduct not directed towards an employee can (when viewed objectively) be shown to have been calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee, the employer will be in breach.
Although the Claimant's claim in Hunter v Timber Components (UK) Limited UKEATS/0025/09 failed (both at first instance and in the Employment Appeal Tribunal) the EAT's decision is relevant as it clearly sets out that conduct not directed at the Claimant can still lead to a breach of the Claimant's employment contract.
In this case, Mr Hunter resigned from his employment as he was no longer prepared to witness the way that a director of the company treated other staff. The Employment Tribunal found that the director was "intimidating and arrogant in the way he spoke to staff" and that he bullied younger employees. The director did not target the Claimant and the Claimant was not frightened of him, although he did disapprove of the way he treated the others. The EAT confirmed that an employer could breach the implied term of trust and confidence owed towards an employee by means of conduct directed towards a different employee.
In this particular case the Employment Tribunal and the EAT both found that the Claimant did find working with the director extremely difficult and that he disapproved of the way he spoke to others. However, the finding was that the Claimant could no longer cope with working with the director in question because he was stressed and depressed (there was no causal link between the director's behaviour and the Claimant's stress and depression) and not because of the way that the director treated the other employees.
Employers should treat complaints about bullying extremely seriously and ensure that these matters are resolved – this case is a reminder that all those who witness bullying may be impacted and that the employer could be found to have breached the contract of employment if insufficient steps have been taken to ameliorate the situation.