A new term of procedural fairness?

December 2nd, 2021

In Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1791, the Court of Appeal (Underhill, Singh and Elisabeth Laing LJJ) rejected an argument, brought by a consultant surgeon under disciplinary investigation, that a contractual right to sight of correspondence imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation.

Of more general interest, however, are the Court of Appeal’s dicta about the development of an implied term of procedural fairness in the employment contract.  Underhill LJ noted at [35] that, whilst there “many not on the orthodox view be a general duty on an employer to act fairly in all contexts … such a term is very readily implied in the context of disciplinary processes”.  Singh LJ said at [47] that “there may be a narrower basis for an implied term that disciplinary processes will be conducted fairly, which is not conceptually linked to the implied term of trust and confidence”.  He noted that the law had already introduced some concepts of public law into the employment contract, in particular in Braganza v BP Shipping [2015] ICR 449 (incorporating Wednesbury principles), and stated that, “if the law were to imply a term into the contract of employment that disciplinary processes must be conducted fairly, that would be a short step which builds on Braganza.”  Underhill LJ expressly associated himself with these observations.

Singh LJ would, therefore, appear to have overcome the misgivings which he expressed in of Patural v DG Services (UK) Ltd [2016] IRLR 286 about the need for caution in the cross-fertilisation of private law with public law concepts.  He noted in that case that:

“It is to be recalled that the fundamental basis of public law is that public authorities have only those powers which are conferred upon them by law and must act in the public interest.  Private actors such as employers and business entities more generally do not necessarily have the same duties.”

There are, accordingly, sound reasons of policy why employers should not be under such stringent legal duties as to procedural fairness as public bodies are when exercising their statutory functions.  It is unclear why the implied term of trust and confidence should not be sufficiently flexible to supply any additional and necessary right of due process which the contract, non-contractual disciplinary procedures or the law of unfair dismissal do not already provide.  An implied term of procedural fairness could be far-reaching in effect, providing a new basis for seeking injunctive relief to halt the disciplinary process, and conceivably opening the door for damages claims which go beyond the normal notice sums recoverable under orthodox contractual principles (although Johnson v Unisys Ltd [2003] 1 AC 518 may remain a barrier to such claims).

The dicta in Burn on an implied term of procedural fairness are obiter.  This is unlikely to limit the frequency with which they are cited by claimants’ lawyers.

Daniel Stilitz QC

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