We have an employee who is disabled. Having sought advice from Occupational Health, we have made reasonable adjustments. However, every time we attempt to interact with this employee, he is difficult and refuses to engage. He says he will only meet with us in the presence of his union representative. We also understand he is about to issue a grievance and may have issued legal proceedings against the Company.  Can we dismiss him on the basis that there is a breach of trust and confidence?

A duty of trust and confidence is usually an applied term within an employment contract.  Allegations of breach of trust and confidence are often used by employees in support of claims of constructive dismissal where the employee has resigned in response to actions of the employer.

You will be aware under the Employment Rights (Northern Ireland) Order, there are 5 fair reasons for dismissal, falling under the main headings of capability, conduct, redundancy, breach of statutory duty and some other substantial reason (SOSR).  Allegations of a breach of trust and confidence would normally fall under SOSR to justify dismissal. It could be, however, that allegations of this kind by an employer against an employee might actually relate to misconduct, so it is important to identify exactly what conduct of this employee you wish to rely on to support your suggestion that this amounts to a breach of trust and confidence, to such an extent that the employment relationship has broken down.

From the information available, I would suggest it is not sufficient to move immediately to an allegation of breach of trust and confidence to justify dismissal, even if the employee is being “awkward”.  Rather, you should carefully examine each act of the employee which is causing you concern.  If he is objecting to meeting with his line manager alone, you should consider the Company’s policies which govern such meetings – are there written procedures which dictate how employee/line managers’ meetings should occur?  If so, rely on those to advise the employee that his line manager will meet with him personally, without the union representative.  You should also however consider whether there are circumstances which may mean that allowing the employee to meet with his union representative could be considered a reasonable adjustment, in view of the employee’s disability.  The actual reason for the meeting should also be examined to assess whether the nature of the discussions could mean that the employee has a statutory right to accompaniment.  All of these factors should be considered before refusing the employee his request to have his union representative present at these meetings.

The employee has a right to raise a grievance, if there are matters in the employment relationship which are causing him concern. Equally, he has the right to issue legal proceedings against the Company, either at the employment Tribunal or within the civil courts, to protect or enforce his contractual and statutory rights.  I would suggest that either of these actions, on their own, would not be sufficient to automatically allow the Company to allege that these acts are such that they constitute a breach of trust and confidence, which has irrevocably damaged the employment relationship.  You should also consider the risk that a dismissal, in response to either of these actions, might be unfair if the employee alleges victimisation and/or that he has suffered a detriment due to exercising his rights.

I would be of the opinion that the Company should move slowly before suggesting to the employee that his actions are such that they amount to a breach of trust and confidence.  I suggest you should review your policies to ascertain if there are grounds for engaging the employee, facilitating a meeting with him and his line manager, and then address any subsequent grievance on its own merits.  If the employee does issue proceedings against the Company, they should remain separate from the ongoing employment relationship.  I would be wary of a knee jerk reaction even though there may be deep frustration with this employee’s actions.