Fairness in the contract of employment

Many labour law scholars in the UK are disillusioned with recent judicial decisions by the House of Lords and Supreme Court on the contract of employment. The argument made in this article is that, although there are good reasons for disillusionment with the Johnson v Unisys progeny, there have nevertheless been potentially some very positive developments for employees in recent decisions. On procedural fairness, the High Court has read in principles of ‘natural justice’ to the employment contract, whereas both High Court and Court of Appeal decisions seem to see courts intervening, at least in some areas, in the employment relation also on the grounds of substantive fairness. It is suggested here that these recent cases are evidence of a nascent duty of ‘fairness’ in the contract of employment, and the case is made for explicit recognition of, and development of, this duty. A practical application is provided, to finish, with the topical phenomenon of so-called ‘zero hours contracts’.