The claimant was employed within the defendant’s group of companies known as the World Sport Group since 2006 until he resigned in 2017.   The issue with his employment arose with the defendant, Lagardere, with whom he had been employed since October 2015.   His position was that he had been instrumental in securing the media rights to the Indian Premier League cricket.  The dispute then arose from his claim that the World Sport Group and the Board of Cricket Control for India had terminated contracts and he suffered a loss of reputation as well as other losses.  One of the primary concerns raised by the claimant was his entitlement to a bonus of $25 million USD and that the defendant had failed to try and recover this sum from within the group and this led to a breach of the implied term of trust and confidence.

The claimant’s case was that the UK Agreement he had with the defendant had an implied term that the defendant would not conduct itself so as to destroy the relationship of trust and confidence with the claimant as well as ensuring that they would take reasonable steps to secure the two bonuses and compensation that he was due from other companies within the World Sports Group.  This case was a strike out application from the defendant and required the Master to examine the extent of the implied term of trust and confidence and whether it could be used to obtain a remedy for breach of contract.  There was reference to the decision of Lord Nicholls in Malik when he stated:

‘I can see no justification for the law giving the employee a remedy if the unjustified trust destroying conduct occurs in some ways but refusing a remedy if it occurs in others.’

This was used to combat the defendant’s argument that the implied term of trust and confidence only worked as a prohibition on certain types of conduct rather than being used as head by which one could obtain a remedy.  The Master did outline that the failure of the defendant and whether it led to a breach of the implied term would be fact sensitive.   For this reason, it was held that summary judgment striking out the claim would be inappropriate as there needed to be more disclosure and information.  However, it is important from a legal viewpoint that the implied term of trust and confidence could be used as a way to avail of a remedy for breach of contract.  Indeed, in the final paragraph the Master stated the test was whether on the facts the employer so conducted itself as to destroy or seriously undermine the relationship of trust and confidence between it and the employee without reasonable cause.  That conduct can take the failure to do something or from positively doing something.

Practical Lessons

Whilst this is a breach of contract claim rather than a claim at the Tribunal, this decision provides some guidance on the effect of the implied term of trust and confidence.  The decision of the Master makes it clear that both omissions and positive actions can lead to a breach and that the effect of the term is not merely to prohibit certain actions but has ‘teeth’ in that it can lead to a remedy for the party wronged.  Whilst this was only a decision on a summary application, the decision may have ramifications for the type of claim that comes on foot of a breach of the implied term of trust and confidence.  The use of High Court litigation rather than the Industrial Tribunal (for constructive dismissal or Breach of Contract) may be more lucrative and the subsequent cases and/or substantive decision will need to be examined to see what effect it could have on employers.
https://www.bailii.org/ew/cases/EWHC/QB/2020/2608.html