Lew v United Synagogue

In an application to restrain disciplinary or capability proceedings under a contract of employment, the court may grant an injunction where there has been no breakdown in mutual trust and confidence, provided there is a serious question to be tried. The court must consider the adequacy of damages, any undertaking in damages, and the balance of convenience or risk of injustice.

A contractual disciplinary procedure covering misconduct, neglect of duty and breach of duty may arguably extend to capability concerns where those concerns relate to the performance of contractual duties. Introducing and using a separate capability procedure may itself arguably breach the contract where contractual changes require notice and consultation, particularly if the procedure appears devised to secure dismissal.

The claimant was the senior Rabbi of Stanmore and Canons Park Synagogue and was employed by the defendant charity. His contract incorporated disciplinary bylaw N15(a), while a later capability procedure stated that it was non-contractual and could be amended at any time.

Following performance meetings, the defendant sought to convene a formal capability hearing which might lead to dismissal. The claimant contended that the capability procedure had been introduced to circumvent the contractual disciplinary procedure and that its use would breach his contract. He sought continuation of an interim injunction restraining disciplinary and capability proceedings.

1. The court had power to continue an injunction restraining disciplinary or capability proceedings, provided there had been no breakdown in the mutual trust and confidence essential to the continuation of the employment contract. Both parties accepted that no such breakdown had yet occurred.
2. The claimant had to show a serious question to be tried. The court also considered the adequacy of damages, the claimant’s undertaking in damages, and the balance of convenience, described by May LJ in Kayne v Global Natural Resources Plc [1984] 1 All ER 225 as the balance of risk of doing an injustice. The balance plainly favoured restraining potentially unlawful acts where the defendant was unlikely to suffer measurable loss.
3. The contractual bylaw required allegations of misconduct, neglect of duty or breach of contractual duty to be dealt with through a specified committee procedure. The court considered it at least arguable that the bylaw was sufficiently flexible to encompass capability concerns relating to knowledge, skill or ability, particularly where those concerns concerned the discharge of duties.
4. The capability procedure gave the claimant materially fewer protections than the contractual bylaw. It was arguable that its introduction breached the contractual provision requiring changes in terms and conditions to be made only after due notice and consultation. The timing and surrounding circumstances also gave rise to a serious question whether the procedure had been devised as another means of dismissal rather than to address genuine capability concerns. The reasoning in Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust [2009] EWHC 2360 (QB) provided a relevant comparison concerning a change of course while an earlier contractual process remained incomplete.
5. The injunction was continued. All disciplinary and capability proceedings were to be halted pending trial, subject to argument on the precise form of order and consequential directions.