Employers and avoidance tactics: What are you implying?

In a case expected to go to trial shortly, an ex-employee has claimed that her employment contract with her former employer contained an implied "antiavoidance" term. This term purports to require that the employer not engage in tactics calculated to evade the operation of an express term of the contract that confers a benefit upon the employee. This article examines the implied anti-avoidance term contended for in this case and concludes that there is a sound basis for implying it by law. It also concludes that the term may already be encompassed within the existing implied term of mutual trust and confidence. This calls, however, for the courts to confirm that the limitation imposed on that implied term in England, which prevents it from operating in the realm of dismissal, is not applicable to Hong Kong. The article concludes by suggesting that an alternative, and perhaps better, route to the anti-avoidance principle may lie simply in the ordinary principles of construction of the express contractual terms without the need for any implied term.