What is an injunction? It is a Court order restraining a person from carrying out a specific act or requiring him to perform such an act.
In employment law the use of an injunction where there is a threatened or actual dismissal has increased in the last few decades. And its use is not confined to only dismissal situations.
They have also been sought in relation to sick pay, pickets, advertising positions, ending suspensions etc.
However the increasing use of the employment related injunction must be viewed against the backdrop that Courts are very reluctant to order specific performance of a contract of personal service.
Prohibitory or Mandatory?
The most common form of injunction sought is a prohibitory injunction seeking to restrain the employer from doing a specific act.
An interim or interlocutory injunction is generally sought on an ex parte basis to preserve the status quo in a dispute until the action can be tried in Court (interlocutory) or until a further order can be made by the Court prior to the hearing (interim). It is generally applied for where the matter is particularly urgent.
Principles governing the granting of an injunction
The principles were summarised in Campus Oil v Minister for Industry and Energy [1983] and are
- That there is a fair or bona fide issue to be tried-in other words the claim must not be frivolous or vexatious;
- If there is a bona fide issue to be tried the Court must then consider whether damages would be an adequate remedy or not. If so the Plaintiff will be required to give an undertaking as to damages, that is, in the event of the injunction being refused the Plaintiff will pay damages to the person injuncted;
- That the balance of convenience favours the granting of the injunction rather than its refusal.
As stated above, Courts will refuse to order the specific performance of a contract of employment. Because it would be impossible to supervise and because damages should be an adequate remedy. However there are exceptions but there must be mutual trust and confidence between employer and employee.
When will Courts grant an injunction in an employment law case?
Over the last 30-40 years the Courts have affirmed the traditional position that damages are an adequate remedy in cases of purported wrongful dismissal. However case law has shown that injunctions may potentially be granted in the following 6 situations:
1. where the dismissal is in breach of contract eg the absence of the contractual notice period or the absence of a contractual disciplinary process;
2. where the dismissal is ultra vires;
3. where the dismissal is in breach of fair procedures;
4. where the purported grounds for dismissal are absent eg alleged redundancy;
5. where the dismissal is in breach of a constitutional right;
6. non dismissal injunctions eg preventing the advertising of a position pending the trial of the action.
Wrongful dismissal at common law and statutory unfair dismissal
(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.(Section 15 Unfair Dismissals Act, 1977)
The employee must therefore choose between suing for damages at common law or claiming relief under unfair dismissals legislation. So the employee when seeking an injunction or declaration will not include a claim for damages for breach of contract in order to keep open the door to the unfair dismissals legislation.
Generally, injunctions are sought be employees on an ex parte basis, that is without notice to the other side. However where the application is unsuccessful the consequences for the employee can be serious on two significant grounds:
1. Court costs and
2. the fact that the employee’s application would have been predicated on the subsistence of the employment relationship-clearly this makes it difficult to then claim unfair dismissal at the Employment Appeals Tribunal.
If you are considering seeking a Court injunction in an employment matter, make sure to obtain professional legal advice first.