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Latest in Employment Law>Case Law>Mullen v Brown Thomas [2011]
Mullen v Brown Thomas [2011]
Published on: 31/08/2011
Issues Covered: Dismissal
Article Authors The main content of this article was provided by the following authors.
David Fagan
David Fagan
Background

Ms Justice Mary Laffoy granted an injunction last week preventing Brown Thomas from effecting its decision to dismiss an employee. Mary Mullen had brought a claim of bullying and harassment to the attention of her employers and was then told she was being dismissed. 

In seeking the injunction, it was claimed that the Applicant’s dismissal arose from complaints made to Brown Thomas that the Applicant had been bullied by a superior, whom she alleged made her working life “unbearable”. She made an informal complaint, and when she felt that nothing was done about it, she made a formal complaint through the Company’s Grievance Procedure.

The complaints were subject to mediation during which the Applicant said she was told she should leave the company, given the breakdown of the working relationship between her and her superior. She claimed she was “taken aback” by this. Matters then came to a head when the company told Ms Mullen that it was terminating her employment with immediate effect, providing her with one months pay in lieu of notice.

The Applicant claimed that she was not afforded natural justice by Brown Thomas, including the right to appeal its decision to terminate her employment. The Applicant alleged that the dismissal would do irreparable damage to her professional reputation in a tight knit and niche industry. She asserted that damages would not be an adequate remedy as she would not be able to find a similar position given the current economic situation.

Laffoy J granted the injunction stating that the Applicant had raised a fair issue to be tried. 

LEGAL ANALYSIS

Recently the Courts have been somewhat loathe to grant injunctions in employment cases other than where misconduct is being alleged against the Applicant, choosing instead to direct employees to the Employment Appeals Tribunal or the Equality Tribunal. Essentially in order to secure an injunction, an employee must prove that he has a strong case for trial, that the balance of convenience lies with granting the injunction and that damages would not be an adequate remedy.

What makes the Brown Thomas case unusual is that the employee therein, was not dismissed for reasons of misconduct and the Applicant was not challenging the fairness of a disciplinary procedure. The Company in this case terminated the contract of employment and gave the employee one months notice. As such it was simply invoking its contractual right.

In light of the 2008 Supreme Court decision in Sheehy v Ryan, an employer could be forgiven for thinking that adherence to the contract of employment could keep them out of the courts. The Supreme Court in that case concluded that there had been no breach of contract, as the employer was entitled to terminate the employee's position upon the giving of reasonable notice. The facts showed that the employer had given three months' notice where the contract obliged notice of only four weeks.

Laffoy J in the Brown Thomas case seems to have relied on the contention that the dismissal would do irreparable damage to the employee’s reputation and that the Applicant would struggle to find another job in the niche market. 

Although the Brown Thomas case was settled between the parties before Laffoy J gave a judgement, her decision in the ex-parte application may herald a significant change to the precedent of employment injunctions. It is arguable that many employees would suffer damage to their reputation if dismissed. It is suggested that reputational damage alone should not be enough to ground an injunction preventing the otherwise lawful dismissal of an employee, unless some sort of allegation has been made against the employee.

Employers who do not follow fair procedures and the principles of natural justice in terminating employment for misconduct reasons have always been at risk of being injuncted. If this case is relied on in the future, it may be that employers who dismiss for non misconduct reasons will also be at risk of injunction, if the reputation of the employee is on the line.

This decision was an ex-parte decision, so employers will want to see further clarification before reacting accordingly. However most employers will be hoping that this case is not the start of a trend.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 31/08/2011
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