Obligation
to maintain trust and confidence is a mutual one
In
McCormack v Hamilton Academical Football Club Ltd, the Court of Session held
that the obligation to maintain trust and confidence is a mutual one. Therefore,
an employer is under a duty to keep its employees fully informed of any
perceived deficiencies in their conduct during the course of their employment.
Mr
McCormack (M), the Football Club’s Assistant Manager was summarily dismissed. M
brought a claim for wrongful dismissal. The club argued that the summary
dismissal was justified because: (i) M
had been guilty of misconduct on a number of occasions during his short
employment; and (ii) taken together, these acts of misconduct amounted to a
repudiation of his contract.
The
Court of Session held that M had been wrongfully dismissed. There had been no,
one, single flagrant breach of contract that was serious enough that it
justified instant dismissal. So the issue was whether the cumulative effect of
M’s misconduct had caused the club to lose trust and confidence in him. Some of
the allegations against M were proven, e.g. inappropriate behaviour on the
touchline and in the dressing room during a pre-season tournament; but others
were not, such as an allegation that M had bullied certain players.
None of the
allegations, however, had been taken up formally with M. All that had happened
was that the Club chairman had spoken to him informally about his behaviour.
Then M was summarily dismissed which came as a ‘bolt out of the blue’. The
obligation of confidence and trust is a mutual one: the club was under a duty
to keep its employees fully informed of any perceived deficiencies in their
conduct during the course of their employment. That did not occur here and the
circumstances could not possibly warrant summary dismissal.
September 2010
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
