Where an employee is found to have committed an act or acts of misconduct it may mean that an employer no longer has trust in the employee and it would not be feasible for the employee to return to work.
Under section 98 Employment Rights Act 1998 (“ERA”) a potentially fair reason for dismissal is “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. This is a catch-all category to deal with reasons which are not identified elsewhere in the ERA. One example of a potentially fair reason for dismissal under this category is a breakdown of trust and confidence.
Where an employer is seeking to rely on this reason to dismiss an employee it should always undertake a fair and thorough investigation into the allegations, and the employee should be notified that this is an allegation against them in a letter inviting them to a disciplinary hearing. Employment Tribunals have been critical of employers who attempt to use the notion of a breakdown of trust and confidence as a blanket reason for dismissal. It will be necessary for an employer to have evidence of specific circumstances which show why they no longer have faith in the employee. It will not be sufficient to simply refer to broad or vague reasons. Employers should also generally avoid relying on a breakdown in trust and confidence as the only reason for a dismissal. In a dismissal situation a breakdown in trust and confidence is often cited as a reason for dismissal linked to findings of misconduct for example that in light of the misconduct an employer has lost confidence in the employee to such an extent that is not feasible that the individual can return to work.
