The High Court has refused an injunction sought by a solicitor to stop his employer, Byrne Wallace, implementing a purported redundancy and to require it to continue paying his salary while his case proceeds.
Ms Justice Baker ruled on 28 November 2017 that the solicitor had not shown a strong case that would justify the interim relief. The application concerned the letter by which the firm purported to terminate his employment on grounds of redundancy. The court did not decide whether the redundancy was genuine or whether he had been unfairly selected.
The solicitor had worked at the firm since 2006, in its healthcare department. He had taken extended sick leave from July 2013 to November 2015 and a short period of unpaid leave in May 2016. The judgment records that he has bipolar mood disorder and that he had told the firm about his illness before starting work. After a firm-appointed doctor considered him fit to return, he was not re-engaged.
In a separate action begun in 2016, he seeks, among other relief, permission to return to work and a declaration that he remains employed. That case had not yet been heard. The current proceedings followed the firm’s 28 August 2017 letter. The solicitor pleaded that the redundancy was a breach of contract and was contrived, arguing that similar work continued and that the firm recruited solicitors to do it. Byrne Wallace disputed that account in affidavit evidence, creating a factual dispute the judge said could not be resolved at this stage.
The central issue in the injunction hearing was whether the claim could be pursued at common law or was within statutory employment-redress schemes. The solicitor argued that the firm had to follow fair procedures before terminating his employment. The firm argued that the complaint was, in substance, about unfair selection for redundancy and belonged within the statutory scheme.
Justice Baker held that the substance of the claim was statutory: it challenged the genuineness of the redundancy or the selection for it, rather than identifying a contractual termination term, such as an agreed notice period, that the firm had breached. The common law did not provide a separate basis for an injunction in aid of that claim. The judge therefore refused the requested relief without considering the balance of convenience or whether damages would be adequate.
The court ordered the current proceedings and the 2016 action to be heard together, but not consolidated. It said further directions would follow after submissions from counsel.