Pitt, Gwyneth (2016) Procedural fairness: a new implied term? In: Outlook for Labour Law: Group for Employment Law and Policy (GELP); 13 May 2016, Kingston upon Thames, U.K.. (Unpublished)

Abstract

The emergence of the implied term of mutual trust and confidence in contracts of employment is sometimes presented as a generalisation from other specific implied terms, despite its initial articulation in the context of constructive dismissal (e.g., Cabrelli 34(4) ILJ 284 (2005)). The question to be explored here is how far recent jurisprudence can be taken as establishing the existence of a new implied term – a right to be treated fairly in procedural terms in relation to disciplinary and dismissal proceedings. The ability of employees to enforce contractual disciplinary procedures is relatively well-established, at least in the negative sense of being able to prevent departures from procedure, although not necessarily through compensation for breach. However, a number of recent cases suggest that there could be a parallel implied right to a fair procedure even where the disciplinary procedure is not part of the contract. This seems to be developing by way of extrapolation from the mutual trust and confidence term. The Supreme Court’s decision in West London Mental Health Trust v Chhabra (2013) may be regarded as a landmark decision in this regard. This paper explores whether this shows a settled change in the law, whether the implied term would apply equally to all types of employee and what the further implications of such a term could be.

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