It would appear from the decided cases, that the primary purpose of the implied duty of trust is to ensure that the employer acts in good faith and does not unfairly or inequitably exercise his/her power under the employment contract.4 This paper explores the emerging concept of the implied duty of trust and confidence in the employment contract and argues that it is a significant development, used for the purpose of regulating and restraining the employer’s conduct in asserting his/her power under the employment contract.
The implied duty of trust is a relatively new concept of employment law.5 The duty itself is most likely founded on the fundamental principle of co-operation required of parties to a contract generally.6 It is also part of the history of employment law and its shift away from the underlying tenet of the preexisting master/servant characterization of employment relationships. In this regard, the emerging duty of trust can be detected in Lord Slynn’s judgment in Spring v Guardian Assurance Plc  2 AC 196 in which Slynn J said:
The changes which have taken place in the employer/employee relationship, with far greater duties imposed on the employer than in the past, whether by statute of by judicial decision, to care for the physical, financial and even psychological welfare of the employee.7
The duty of mutual cooperation merely dictated that parties to a contract tailor their conduct so as not to undermine the terms and conditions of the contract.8 In other words the duty of mutual cooperation did not impose upon the parties a positive duty. The implied duty of trust which was developed from the duty of mutual cooperation does impose upon the parties a positive duty to take specific action. For example in Scally v Southern Health and Social Services Board  1 AC 294 the court held that the implied duty of trust and confidence imposed upon the