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03 November 2011 / Ming-yee Shiu
Issue: 7488 / Categories: Features , Tribunals , Disciplinary&grievance procedures , Employment
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A position of trust?

Ming-Yee Shiu considers the circumstances in which fiduciary duties may be imposed upon employees

Claims of breach of fiduciary duty have become increasingly popular in relation to various forms of misconduct by employees, such as misappropriation of company property, unlawful competition, diverting opportunities, and receiving bribes. Although there may be corresponding claims in contract and tort, the onerous nature of fiduciary duties may widen the scope of potential liability.

Furthermore, there are a number of effective remedies for breach of fiduciary duty in addition to compensation in damages. These include the gain-based remedy of an account of profits and, potentially, proprietary remedies. The existence of a proprietary remedy can assist a claimant not only at the final stages of an action but also in seeking interim remedies such as asset preservation orders.

While trustees and company directors are known to be fiduciaries, it is for the employer to establish the basis of any fiduciary relationship and the nature and scope of any fiduciary duties owed by its employees. Accordingly, an understanding

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NEWS
Contract damages are usually assessed at the date of breach—but not always. Writing in NLJ this week, Ian Gascoigne, knowledge lawyer at LexisNexis, examines the growing body of cases where courts have allowed later events to reshape compensation
The Supreme Court has restored ‘doctrinal coherence’ to unfair prejudice litigation, writes Natalie Quinlivan, partner at Fieldfisher LLP, in this week' NLJ
The High Court’s refusal to recognise a prolific sperm donor as a child’s legal parent has highlighted the risks of informal conception arrangements, according to Liam Hurren, associate at Kingsley Napley, in NLJ this week
The Court of Appeal’s decision in Mazur may have settled questions around litigation supervision, but the profession should not simply ‘move on’, argues Jennifer Coupland, CEO of CILEX, in this week's NLJ
A simple phrase like ‘subject to references’ may not protect employers as much as they think. Writing in NLJ this week, Ian Smith, barrister and emeritus professor of employment law at UEA, analyses recent employment cases showing how conditional job offers can still create binding contracts
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