It is clear that the introduction and development of discrimination legislation has been a major feature of employment law (and of course many other areas of law) over the past forty and more years. It has been thrown into sharp relief because the common law previously provided very little protection indeed for employees, or would-be employees, who were discriminated against. And it still fails to do so. For example, discriminatory conduct is, almost by definition, unreasonable, and so it might be thought that this would provide a basis for a contractual remedy. A non-lawyer in particular might feel that a contract of employment would contain, if not an express term to this effect, an implied term that the employer will be deemed to be acting unreasonably if it acts in a discriminatory manner. However, the employment contract does not contain an implied term that the parties will act reasonably towards each other, even though the parties, if asked whether they would consider reasonable behaviour to be part of their relationship, presumably would almost invariably answer that this went without saying. In other words, reasonableness is something that would seem easily to pass the ‘officious bystander’ test for the implication of terms into contracts, but the courts have never adopted this approach with regard to employment contracts. Even if they had, and this were a method of protecting employees against discrimination at common law, it would in any event exclude an ambit where much employment discrimination takes place, namely failure to offer work to someone for a discriminatory reason.
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