Injunctions

An injunction is a discretionary power that can be exercised by a county court, or the High Court. In relation to employment law injunctions may be obtained to enforce rights set out in the contract of employment.

For example, the court may grant an injunction to prevent an employer from dismissing an employee before completing a contractually binding disciplinary procedure. Courts have granted injunctions to prevent an employer from enforcing an instruction to an employee that it was not contractually entitled to give, and also to prevent an employer from dismissing an employee on grounds of redundancy in breach of a contractually binding redundancy selection procedure. However, the courts approach injunctions in the employment context with a degree of caution, as it will generally refrain from requiring a party to the contract of employment to specific performance of that contract. The way round this is that where both the employer and employee can agree that the contract still exists it may enforce a part of it so far as the contract can allow, say on a procedural matter, without forcing the employee to actually work, or the employer to provide the employee with work. Therefore injunctions may be enforced in order to require contractual procedures to be followed properly, such as a contractual disciplinary or redundancy procedure. While the court will not grant an injunction to force an employee to work, it may grant an injunction to prevent an employee from working for someone else during his/her notice period,- so long as the employer continues to pay the salary and benefit to that employee during the notice period.

In practice the most common situation that the courts are asked to make an injunction for in employment law concerns is to enforce restrictions on former employees from breaching their obligations on confidentiality, and to enforce post-termination restrictions; such as working for a competitor or poaching customers or other staff in breach of a contractual agreement not to do so. In order that an employer may have a chance of obtaining such an injunction it will have to rely on an express part of a written contract of employment. The court will only serve an injunction if it is convinced that the contractual restrictions are reasonable, protect a legitimate business interest, and that the circumstances in the application for the injunction are actually covered by the contractual restriction that the employer is relying on.

The injunction procedure has two stages:-

1. A temporary injunction may be granted. At this stage the court does not hear all the evidence in the case, but has to decide if there is a genuine dispute to be examined and that no injustice will be caused by granting (or not granting) an injunction. Obviously the employer must produce sufficient evidence to support the granting of the temporary injunction.
2. The second stage is that the court hears the whole case; so evidence from both employer and employee is heard. In practice most cases are effectively resolved either on granting the temporary injunction, or in negotiation between granting of the temporary injunction and the second, full hearing of the case.

There are major court implications in injunction litigation. The court will only grant the temporary injunction if the employer will undertake to pay the employees costs and other expenses and losses if, at the end of a full hearing, the courts reject the application for an injunction. Careful consideration must be given, and detailed advice sought before seeking an injunction.