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Duties of Trust and Confidence and Duty of Fidelity
Duty of Trust and Confidence
You and your employer owe each other a duty not to act in a way that is likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. This is often called ‘the term of mutual trust and confidence’. This is a term which is implied by the law into every contract of employment.
The range of conduct that may breach the term is broad. Subjecting an employee to serious verbal abuse, allowing an employee to be sexually harassed by colleagues, seriously undermining the authority of a manager and imposing disciplinary sanctions whithout any kind of disciplinary procedure have all been held to breach the term. The term may be breached by a failure to act as well as a positive action, for example where an employer gives a benefit to all its employees except one.
If your employer breaches the implied term of trust and confidence, this may constitute a fundamental breach of your contract. This will entitle you to resign and treat yourself as constructively dismissed.
Duties of fidelity and confidentiality
You owe a duty of fidelity or trust to your employer while you work and some aspects of that survive your leaving. While you are employed, you must not disclose confidential information, but you can use information that you remember.
Furthermore, you must not remove and use your former employer’s documents after you leave. There may be clear written instructions in your contract, known as restrictive covenants, which require you to keep information confidential or prevent you from setting up a business in competition with your former employer or from recruiting your colleagues to work for competitors. Such restrictions will be upheld by a court, provided they do not stop you earning a living and they are reasonable for the protection of your former employer’s interests.
However, a covenant is unreasonable if it restricts you for too long or from too large a geographical area, or if it prevents you earning a living. Information relating to your employer’s specific trade secrets must be kept confidential even after you leave. Covenants to protect confidential information in a contract of services may survive the termination of the contract, even if your employer has breached your employment contract.
While employed, you must work for the one employer only during your working hours, but in the absence of some implied restriction on your working for others, you can work in your own time as you wish. Any money you make arising out of your employment belongs to your employer and you must account for it. If you produce written material for publication, your employer has the copyright over it. If you make inventions or create patents, your employer gets the benefit provided your normal duties include the likelihood of your making inventions. If you invent something of outstanding benefit to your employer, you can claim a fair share of the profits.