The Court of Appeal suggested in the recent case of Burn v Alder Hey Children’s NHS Trust 2021 (which related to the disclosure of documents to the Claimant in a disciplinary process) that there may be an implied contractual obligation to conduct disciplinary processes fairly - although the views expressed by Singh LJ and Underhill LJ are not binding.
In rejecting the Claimant’s appeal against a High Court decision to the effect that the employer’s policy did not require the employer to disclose certain documents to the Claimant, Underhill LJ said that any obligation to disclose certain relevant documents would arise from a more general duty of fairness in relation to the conduct of the disciplinary process, rather than by way of a strained interpretation of the words of the policy itself.
Singh LJ added that, whilst he was not making a finding on the point, he did not believe that there was a “legal impediment” to there being an implied term of fairness in the conduct of a disciplinary process.
It is important for employers to take from this that whilst there is no general implied duty on an employer to act fairly in all contexts, a narrower basis may be identified in future cases for an implied term for disciplinary processes to be conducted fairly, which (if breached) could lead to claims for constructive dismissal, and injunctive relief in relation to the disclosure of documents, and the process itself.
If you have any questions about the article above please contact Keeley Parkes and Charles Pallot in our Employment team.
