Human Rights and the Common Law of the Contract of Employment

Abstract

AbstractThis chapter turns to the possibility that contractual methods could be deployed to protect the human rights of individuals at work. Rather than relying on the adaptation of statutory mechanisms, could the common law principles of the contract of employment perform a new role? One possibility is that the terms of the contract of employment could be read in a manner that respects and enforces the human rights of employees. This approach, however, is found to be far from universal from a study of the cases. The chapter therefore examines the prospect that the terms implied into the contract of employment could develop in a rights-protective direction. There are two routes by which this may happen: the expansion of the existing implied obligation of mutual trust and confidence and the implication of a new term targeted specifically to the protection of fundamental rights. Based on the cautious judicial approach that is evident in the area of implied terms, it will be argued that both possibilities are unlikely to occur in the near future.