Judicial Understanding of the Contract of Employment
| Published date | 01 July 1992 |
| Date | 01 July 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00933.x |
The
Modern
Law
Review
[Vol.
55
performance of the contract stems from the courts' understanding of implied terms
as default rules. As long as implied terms are restricted
in
their ambit by the
supposition that they must qualify as terms which would have been agreed
in
the
absence of transaction costs, then the rugged individualist image of parties being
reluctant to concede any additional obligations
will
prevent the development of implied
duties of co-operation. But there are many contrary instances of the courts defining
a broader scope for implied terms based upon such concerns as a fair allocation
of risk or the promotion of successful performance of contracts. As the cases involving
the contract of employment illustrate, these concerns can generate an implied duty
to
disclose information during the performance of contracts. Perhaps these cases
indicate the potential for the development of a more general principle requiring
disclosure of information throughout the law of contracts.
Judicial Understanding
of
the Contract
of
Employment
Lesley Dolding and Catherine Fawlk*
The extent to which judges are prepared to exercise their powers to regulate the
employment relationship may
be
of particular importance at a time of high unemploy-
ment
in
a deregulatory environment. The preliminary decision of the Court of Appeal
in
Johnstone
v
Bloomsbury Area Health Authority'
raises a number of issues
relating to this question
in
the context of the working hours of junior hospital doctors.
The detrimental effects of the long hours worked by some employees, both to
themselves and to third parties, is now well recognised* and the problems facing
inexperienced and overworked doctors
in
particular had
also
received limited judicial
recognition prior to
Johnstone.3
In
Johnstone,
however,
in
response to the plain-
tiff's
direct challenge to the well-established working practices of junior doctors,
a majority of the Court of Appeal refused to strike out the plaintiff's claim that
the working hours required of him by the Authority were such as to put the latter
in
breach of its duty to take reasonable care for his health and safety. The importance
of the case lies not only
in
the impetus which
it
gave to the junior doctors'
~arnpaign,~ but more generally
in
the judicial approaches taken towards the
relationship between managerial prerogative and employee protection.
*Lecturers in
Law,
University of Exeter.
119911
IRLR
118;
[I9911 2
WLR
1362.
See HL Select Committee on the European Communities, 4th Report
1990-91.
Working Time
(London:
HMSO.
1990).
See
for
example
Wilsher
v
€.ssex Areu Health Authority
[
19861
3
All
ER
801.
where a majority of
the Court
of
Appeal held that
in
determining the standard
of
care owed by a junior hospital doctor
to
his patient, no account could be taken of such factors as inexperience or overwork; the test was
objective. See, however, the dissenting judgment
of
Sir Nicholas Browne-Wilkinson VC (as he then
was) who stated, at p
834,
'the law should not
be
distorted by making findings of personal fault against
individual doctors who are,
in
truth. not at fault.' This point was not considered when the case went
to
the House
of
Lords,
[
19881
AC 1074.
In
June
1991.
the Secretary
of
State for Health announced new arrangements for junior doctors. including
the introduction. by
3
I
December
1994,
of a maximum working week of 72 hours for those in 'hard-
pressed' specialities. The remaining
60
per cent
of
junior doctors working in less physically demanding
areas will have to wait
until
January
1997
for the reduction
to
apply. British Rail has also recently
introduced guidelines on maximum working hours, following the report by Mr Justice Hidden into
562
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