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Implied Term that Disciplinary Process will be Conducted Fairly

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In Burn v Alder Hey Children's NHS Foundation Trust, the Court of Appeal construed a disciplinary policy.

That’s not very interesting. But what was interesting were some obiter comments made by Singh LJ and Underhill LJ, two of the Court of Appeal’s four specialist employment judges.

In separate judgments, they both indicated tentative support for implying a term into employment contracts that disciplinary processes should be conducted fairly (see paras. 42, and 47-48). This would be a spin-off to the implied term of trust and confidence, although it is not clear how much further it would take matters or how it would interact with the Johnson exclusion zone (the principle that the implied term of trust & confidence doesn’t apply to the decision to dismiss). However, they were careful to make clear that they were not deciding the point; it merely paves the way for the point to be argued in another case.