Breach of trust and confidence – who got there first?
RDF Media Group Plc & Anor v Clements was a high profile case involving some well-known personalities. The High Court held that there may be ‘reasonable and proper cause’ for an employer to put out a press release about an employee who has resigned and is on garden leave. Engaging in a campaign of vilification against that employee in the press, however, by briefing journalists on an ‘off the record’, non-attributable basis, is likely to breach the duty of trust and confidence. There is a continuing trend for employees seeking to avoid post termination restrictive covenants to allege that the employer is in fundamental breach of the implied term of trust and confidence. In this case the High Court held that if the employee has already breached that duty of trust and confidence, he cannot rely on a subsequent breach of that same term.
