Eleena Misra and Adam Ross have written an article replying to Stuart Brittenden’s article of 14 April 2020, which considered how the implied term of trust and confidence interacts with the Coronavirus Job Retention Scheme.
In their response, they trace the history of the implied term of trust and confidence from the 1970s through to the present, considering its limits and the test to be applied to any extension of its scope. They go on to chart a path through the line of cases linked with the “Johnson exclusion zone”, from Addis v Gramophone Co Ltd [1909] AC 488 to Edwards v Chesterfield Royal Hospital NHS Trust [2012] 2 AC 22, SC. Having laid the groundwork, they consider some of the permanent health insurance cases and analyse the extent to which the reasoning in those cases can be extended to compel employers to make use of the Coronavirus Job Retention Scheme.
They reach the opposite conclusion to Stuart Brittenden, acknowledging that there will be no firm answers until the rival contentions are determined by the tribunals and courts.
