The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?
* Lecturer in Law, University of Dundee.
There is an argument in academic circles that the implied duty of mutual trust and confidence will evolve to form an all-embracing super-principle under which each of the more ‘traditional’ implied duties will rest, including the employer’s implied duty to exercise reasonable care for the welfare and well being of the employee. The theme of this article is that, on balance, there is no evidence for the emergence of the implied duty of mutual trust and confidence as a super-principle. If anything, the recent trends in the case law emphasise the distinctiveness of the employer’s duties to exercise reasonable care and trust and confidence. The article’s aim was to demonstrate that both duties are separate, free-standing duties, sitting on an equal plane in terms of importance. To rationalise one, or all of the implied duties (i.e. the duty to exercise reasonable care and/or all of the other ‘traditional duties’), as one of the means by which the super-principle of trust and confidence is, or may be expressed, is to a large extent, aspirational.