Employment: Implied Term of Confidence - Constructive Dismissal

In Milne v Link Asset Security Company Limited▪ Suspension by itself did not constitute a
[2005], Mr Milne was employed by Link Assetbreach of implied duty of trust and confidence
Security Company Limited (LASL)from 30and ultimately a fundamental breach of an
September 1999 until 22 December 2003 as aemployee's contract of employment;
broker and manager.▪ In order to determine whether a
Mr Milne was suspended from his job by LASL onsuspension constitutes a breach of the implied
12 December 2003, pending a disciplinary hearingduty of trust and confidence, the tribunal must
on 17 December 2003. At the disciplinary hearing,have considered the surrounding circumstances
issues which related to Mr Milne's performanceincluding
and conduct were mentioned but without detail.(i) the reasons for suspension
Mr Milne decided not to go to a second proposed(ii) the length of suspension
meeting on 19 December 2003 and instead(iii) whether the employee lost his income
resigned to avoid the embarrassment of dismissal.(iv) whether the employee was replaced; and
Mr Milne then commenced proceedings against(v) whether the contract required the employer
LASL for unfair dismissal and breach of histo provide work to the employee;
employment contract.▪ In this case, the suspension was short,
The Employment Tribunal (criticised LASL'sMr Milne was still in his job, his remuneration was
decision to suspend Mr Milne before the disciplinarynot affected and LASL was keen to ensure Mr
hearing, the absence of an investigation beforeMilne stayed. There was therefore no breach of
the meeting and LASL's failure to allow Mr Milne tothe implied duty of trust and confidence and Mr
state his case. The Employment Tribunal howeverMilne had not established an overwhelming case
found there was no breach of Mr Milne's contractthat the Employment Tribunal had come to an
of employment as a result of his suspension andunreasonable decision.
the way in which the disciplinary proceedings wereThe appeal was dismissed.
conducted.Comment: If you require further information on
Mr Milne appealed on the ground that thecontracts of employment please contact us.
Employment Tribunal's decision was perverse inEmail: © RT COOPERS, 2006. This Briefing
that it did not find that LASL was in breach ofNote does not provide a comprehensive or
the contract of employment.complete statement of the law relating to the
The Employment Appeal Tribunal held that:-issues discussed nor does it constitute legal advice.
▪ Mr Milne had to show an overwhelmingIt is intended only to highlight general issues.
case that the Employment Tribunal made aSpecialist legal advice should always be sought in
decision that no reasonable tribunal would haverelation to particular circumstances.
reached;