Implied terms and human rights in the contract of employment

This article considers the potential for implied terms in the contract of employment to protect employees’ human rights. The slim prospects of legislative action in this area make it important to consider common law means of protecting human rights at work. Part 2 begins by setting out the function of implied terms in the contract of employment and the various ways human rights can affect the legal regulation of the employment relationship. Part 3 considers the extent to which the implied term of trust and confidence can protect employees’ human rights. While there are numerous points of overlap between trust and confidence and human rights, both the scope of the implied term and the level of protection it provides mean that it is currently an inadequate mechanism for protecting human rights at work. Part 4 then assesses the prospects of a new human rights term being implied into the contract of employment using the existing tests for terms implied ‘in fact’ and ‘in law’, and develops a prima facie case in favour of implying a human rights protective term into all employment contracts as a default rule.