Employee Fiduciary Accountability
Journal of Business Law, Issue 3, 2015
34 Pages Posted: 15 Aug 2015 Last revised: 24 Sep 2015
Date Written: June 1, 2015
Abstract
Recent judgments of the English Court of Appeal have disturbed the conventional view that employment is a status fiduciary relation. Regrettably the analytical departure (specifically the denial of status accountability) was not grounded in sound principle or authority, and fresh uncertainty has been introduced into the law. The matter is significant obviously because employees and employers require a lucid regulation to materially inform their actions. I review the case law to confirm that the fiduciary accountability of employees previously was recognised as status-based. I then identify the trial judgment that crystallised the break from convention and explain why the analysis in that judgment is deficient. I proceed to demonstrate that subsequently certain Court of Appeal judges bypassed the prior jurisprudence, uncritically incorporated the deficient reasoning and failed to identify any other satisfactory justification for the denial of status accountability. Throughout the discussion I will weave in the views of commentators, both to evaluate the policy considerations thought to be relevant and to illustrate the apparently weak comprehension in the employment context of the contours of fiduciary accountability.
Keywords: duty of fidelity, fiduciary duty of employee, limited access, Nottingham University v Fishel
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