The Relational Principle of Trust and Confidence

Abstract

This article seeks to explain why, in terms of Iain Macneil's relational theory of contract, the implied mutual duty of trust and confidence can be described as a quintessentially relational norm. The role played by the duty in the development of a relational approach to variation of the employment contract is examined. The potential for the trust duty to become a relational principle informing the content of the employment contract is explored. The impact of litigation based on the trust duty in creating a relational approach to employees’ contractual remedies at common law, which have traditionally been dominated by the notice rule, is assessed. Finally, the potential for there to develop a relational principle of trust and confidence capable of, to some extent, unifying the contractual, statutory and tortious elements of the law of the employment relationship is examined.