All Work and No Fair Play? The Right to Fair Procedures in Employment Disciplinary Proceedings

Abstract

Glover v BLN Ltd established that the constitutional right to fair procedures can be relied on by employees directly against their employers during the course of disciplinary proceedings. In the almost 50 years since that decision, the jurisprudence in this area has become increasingly complex, as the courts struggle to explain what precisely the Constitution demands of employers, and the underlying rationale for these protections. Some recent decisions have brought much-needed clarity to this area of law, while others have potentially confused matters further. This article engages with the normative justifications that underpin the right to fair procedures and explains their relevance to the private employment relationship. It then surveys the jurisprudence to identify the practical requirements of the right, albeit with the caveat that the courts are always willing to adjust the demands of fair procedures to account for the realities of the employment relationship. In so doing, the courts have raised significant questions about the relationship between constitutional and contract law, and the permissibility of waiving rights by contract, which have yet to be fully resolved.