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Issue 21 (April 1998)

Contents

Dismissal claims to be adjourned pending Seymour-Smith
New cases highlight inconsistent approach by the courts
Sex discrimination laws used to challenge age discrimination
Court gives green light to rogue employers
Equal opportunities policies - do they have contractual force?
Injunction prevents dismissals
Dismissing without notice

Injunction prevents dismissals

Anderson v Pringle of Scotland [1998] IRLR 64

It is notoriously difficult to persuade a court to grant an injunction to prevent a dismissal, even where the employer has failed to follow its own procedures. A GMB case in Scotland represents a significant and welcome exception to that rule.

The case involves a number of features which may prove to have wider significance.
The first key element was the judge's decision that the terms of the collective agreement on redundancies were incorporated into individual contracts of employment. The agreement was specifically referred to in the employee's statutory statement of employment particulars.

The judge said that this incorporated the whole agreement. This included the method of selection, which provided for 'last in, first out'. This is significant.

Other cases have doubted whether collective agreements on redundancy are incorporated (see Alexander v STC [1998] IRLR 55) and the issues where agreements have been regarded as incorporated tend to revolve around entitlement to enhanced severance payments. A decision that the method of selection is an individual contractual right is a welcome positive step.

The second significant point was the judge's willingness to grant the Scottish version of an injunction, an interdict, preventing a selection for redundancy on any basis other than last in, first out. The judge accepted that the mechanisms of dismissal rather than the principle of dismissal were in dispute.

This was not a case where the employer had lost trust and confidence in the employee and could not be expected to retain him. The judge observed: 'It may be very difficult or inconvenient for the [employers] to abide by the priorities they have agreed to, but they can hardly call it unfair to be held to their own bargain.'

This is a sensible and fair approach. It would be welcome if it were adopted by other judges. If so, it opens the way for actions to restrain redundancy dismissals in breach of agreed procedures. It may be possible to extend this to protect against dismissals without following agreed, contractual consultation procedures.

A few words of caution. This was an emergency decision by the equivalent of a High Court judge in Scotland. It is not binding on other judges in Scotland, England or Wales.

As it was an emergency decision the judge did not need to make final findings on the contractual position, merely decide whether the case was sufficiently strong to justify a temporary order. Nonetheless, this is a decision which may be deployed to the benefit of unions and employees.