THEORISING EMPLOYMENT DISCRIMINATION – A COMMON LAW APPROACH

Abstract

Purpose: Unlike the United Kingdom with her Equality Act 2010 that covers different settings and grounds of discrimination, Malaysia does not have an explicit anti-discrimination legislation. On this ground, in the employment context, the researchers established that the employee could institute the right against discrimination through the common law.
 Theoretical Framework: The argument is founded on the implied contractual term, of trust and confidence, together with the duty of care.
 Methodology: A doctrinal legal research is the approach by composing a descriptive and analytical analysis of legal rules gathered from primary sources namely court cases and statutes.
 Findings: Common law duty of implied term of trust and confidence, and duty of care should be positioning and establishing the employer’s liability for employment discrimination thus providing legal recourse for victimized/discriminated employees.
 Research Implications: This work demonstrates that in the absence of a statute regarding employment discrimination, the breach of implied contractual term could be the approach thus indicating the interrelation of common law theory in employment relations.
 Originality: Should the rights and protection of employees against discrimination be jeopardized in the absence of anti-discrimination legislation in Malaysia, at least, until recently, it is theorised that common law’s implied term of trust and confidence, and duty of care are the basis of legal recourse for employees.