Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518 : A Compelling Constitutional Vision of Common Law and Statute?

The case of Johnson v Unisys has divided opinion among labour lawyers. The initial wave of academic commentary subjected the decision to trenchant criticism on the basis that it left the common law in a confused and unsatisfactory state. More recently, however, a second wave of literature has emerged which mounts a cautious defence of the decision on constitutional grounds. These arguments have considerable force and are yet to be adequately addressed by scholars who are critical of the decision in Johnson. This chapter contributes to the ongoing debate by pushing back against the view that the uncertainty, inconsistency, and incoherence in the common law resulting from Johnson is required out of respect for constitutional principle.

The first part sets out the legal position regarding mutual trust and confidence and implied terms in the contract of employment prior to Johnson. The second focuses on the case itself and the reasoning of the House of Lords. The following parts then examine the problematic legacy of the decision before considering whether the pre-emption of the common law was nevertheless justified. The chapter concludes by identifying and highlighting an important exception to Johnson’s exclusion of the common law where human rights are at stake, the scope and extent of which appears to have been so far overlooked.