An Implied Term of Procedural Fairness During Disciplinary Processes: Into Contracts of Employment and Beyond?

The implication of a new term by law into contracts of employment is significant and relatively rare. In somewhat of a revelation, members of the Court of Appeal in Burn v Alder Hey Children’s NHS Foundation Trust were receptive to the introduction of a duty that would require employers to act in accordance with procedural fairness during disciplinary processes. This article offers the first detailed examination of this development, commencing by exploring the nature, scope and necessity of such a term in the context of contracts of employment. The relationship between this emergent duty and the ‘Johnson exclusion zone’, which limits the remedies available at common law if the breach of the employer’s obligations alleged is the manner or fact of an employee’s dismissal, will be considered. We argue that the real potential of this duty lies in the prospect that it could be extended beyond contracts of employment and implied into, for example, contracts between workers and their employers. Such a development would be novel for the common law and make a substantial contribution to the regulation of a wider category of working relationships and to the pursuit of the objectives and aims of employment law.