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Objectives: 1. Trace the development of the implied duty in the both the Irish and English jurisdiction. 2. Analyse the types of behaviour which will fall foul of the obligation to maintain trust and confidence. 3. Ascertain the limits of the implied duty. 4. Assess the current judicial climate following the first Supreme Court decision on the duty implied. 5. Consider the implications of the implied duty on certain areas of employment law. 6. Determine the potential for further development of the implied duty.
Methods: Qualitative and Quantitative Research
Conclusions: 1. The implied obligation is critically important in relation to the interaction between the common law and statute and underpins all employment relationships. 2. The potential for damages via a claim of a breach of the implied duty has been and will continue to be restricted. 3. The judicial climate is in favour of avoiding setting too high a standard for employers. 4. A purely objective test fails to take account of the emotive nature of this area of law and contradicts the requirement to consider the parties’ conduct as a whole. 5. The modern interpretation of the concept is that it is prescriptive and this narrowing has impacted on the requirements for interlocutory relief. 6. The developing law on bonus payments is being shaped by reference to the implied duty of trust and confidence. 7. The implied duty has the potential to determine the parameters of the law relating to workplace bullying. 8. A breach of the implied duty can be waived but a finding of such should necessarily require an employer to establish that an employee did so with ‘actual knowledge’ of his legal rights. 9. Existing inconsistencies in this area of law should be mitigated such that it will be possible to declare what the law relating to the implied duty is in forthright terms.
McDermott, Katie: The Significance of the Implied Mutual Duty of Trust and Confidence in the Employment Relationship: Masters Dissertation. Dublin, DIT, May 2009