Scottish Court of Session Decisions

The petitioner is a teacher. He has been employed by the respondents and their statutory predecessors as local education authority since about 1978. On 28 June, 1997, the petitioner was suspended by the respondents pending investigation of allegations of professional misconduct. The allegations against the petitioner are not disclosed in the petition, but it is agreed between the parties that they are such that they could lead to his dismissal if held to be well-founded. The petition and answers deal with the procedures which require to be adopted in the investigation of the complaints against the petitioner. The case called on procedure roll on the respondents' pleas to the competency of the proceedings and to the relevancy of the petitioner's averments. In the course of the debate it was accepted by the petitioner that amendment was required to meet the respondents' contentions on relevancy. This opinion deals with the parties' contentions on the competency of the proceedings.

The petitioner seeks orders interdicting the respondents from adopting in his case disciplinary procedures first published in August, 1997 under which initial investigations are committed to a senior officer of the respondents, with an appeal lying to a committee of elected members of the authority, and suspending those proceedings so far as already resolved upon or in hand. His contention is that for the purposes of his contract of employment disciplinary proceedings require to follow terms agreed in about 1975 by the Scottish Joint Negotiating Committee for Teaching Staff in School Education, as supplemented by local agreements, under which all material stages of the procedure have to take place before elected members of the authority. The issue of competency can be stated shortly. It is whether the court may pronounce interdict restraining an employer from proceeding with disciplinary procedures of his own choosing, which may result in dismissal, where the selection of those procedures is in breach of the employee's contract of employment. If the petition is competent, a second issue will then arise whether there are relevant averments of breach of contract in this case. In the circumstances it is sufficient at this stage to make but brief reference to the background to the petition.

The terms of the petitioner's employment in his current post were set out in or incorporated into a letter dated 28 December, 1990. There was provision for variation of his responsibilities from time to time and for consultation prior to any major change in those responsibilities. The letter provided:

As a result of local government re-organisation, the petitioner's contract of employment was transferred to the respondents with effect from 1 April 1996: Local Government etc (Scotland) Act, 1994, sections 8, 9 and 10. The respondents accept that such terms and conditions of employment as the petitioner enjoyed prior to re-organisation remained in full force and effect under these provisions after they assumed responsibility. But they contend that neither specific implement, nor an interdict which would have an effect similar to implement, can be a competent remedy. In the circumstances a prohibition of the adoption and application of the 1997 scheme would compel the respondents to proceed under the 1975 S.J.N.C. scheme. For the petitioner it was contended that whatever might be the position if he were attempting to have the respondents ordained to continue his employment or restrained from terminating that employment, it was not incompetent, standing that employment, for the court to ordain the respondents to implement its terms or to restrain them from proceeding in breach of his rights under the contract. Mr Napier, who appeared for the petitioner, reserved for later argument if need be the more general proposition that it was competent to seek implement or interdict even where the contract of employment had been terminated.

For the respondents, Mr Truscott took as his starting point Lord Reid's observation in Ridge v Baldwin [1964] AC 40 at page 65 that:

The servant's only remedy for breach of contract is damages. He recognised that there is a growing body of case law supporting qualification of the apparent absolute character of Lord Reid's comment, usually by granting a remedy in what are described as exceptional circumstances. He referred to Regina v British Broadcasting Corporation ex p. Lavelle [1983] I.C.R. 99; Alexander v Standard Telephones Plc. [1990] I.C.R. 291; Marsh v National Autistic Society [1993] I.C.R. 453; Irani v Southampton and South West Hampshire Health Authority [1985] I.C.R. 590; Hill v C. A. Parsons & Co Ltd. [1972] Ch 305; Chappell & Others v Times Newspapers Ltd. [1975] I.C.R. 145; Robb v Hammersmith & Fulham London Borough Council [1991] I.C.R. 514., Jones v Gwent County Council [1992] I.R.L.R. 521; and Anderson v Pringle of Scotland Ltd. [1998] I.R.L.R. 64. Where these cases indicated a divergence from the rule expressed by Lord Reid, they were wrong. Lord Reid's observations reflected a long and consistent line of authority which remained valid, and should be followed. He referred to Gloag on Contract 2nd edition page 657; Gloag & Henderson 10th edition page 162; Skerret v Oliver 1896, 23 R 468; Murray v Dumbarton County Council 1935 S.L.T.239; McArthur v Lawson 1887 4R 1134 at page 1138, and Rose Street Foundry & Engineering Company v Lewis 1917 S.C. 341 for statements of the general principle applicable. If the petitioner were correct in his approach, an employer who knew the law could avoid an order for implement or for interdict simply by dismissing the employee. That would leave any question of reinstatement or re-engagement for the industrial tribunal. That was the proper forum for a discussion of such issues. The court should resist further development of deviations from the established principles.

For the petitioner, Mr Napier emphasised that at the present stage in this case the contract of employment subsisted. The court was not being invited to make an order which would affect the continuing contractual relationship between the parties except in relation to machinery. Although disciplinary proceedings were in contemplation, there was a possibility that the petitioner would be exonerated of the complaints against him, and that the outcome of the procedures would be that there was no basis on which the petitioner might be dismissed. Dismissal was a possible, but by no means an inevitable, outcome of the proceedings. The respondents were bound to apply a specified disciplinary code of procedure. They could not do otherwise than to follow it. There was no reason in principle or in authority why the remedies sought could not be granted, and that was the test which applied. In general parties' contractual obligations were enforceable by specific implement. He relied principally on Anderson v Pringle of Scotland Ltd.; Robb v Hammersmith & Fulham London Borough Council; Jones v Gwent County Council; and Irani v Southampton and South West Hampshire Health Authority in developing his argument. But he referred in addition to Burn Murdoch on Interdict at pages 71-72; Sheriff Scott Robertson's book on The Law of Interdict at page 162; and Walker's Civil Remedies at pages 232-3. Finally, he relied on Blair v Lochaber District Council 1995 S.L.T. 407 for the proposition that the petitioner had no other effective remedy.

I was not impressed by Mr Napier's last contention. Mr Truscott pointed out that decisions of local authorities relating to teachers had been judicially reviewed. But whether or not that remedy were available in a given situation, damages would provide an alternative remedy in cases of breach, and that remedy has for long been recognised to be the practical alternative in the typical case. It cannot have escaped the attention of the many judges who have disposed of arguments of this kind that the refusal of suspension and interdict or of specific implement would result in the contract being at an end, and in the restriction of the complainer's remedies to pecuniary damages.

Lord Reid's comments in Ridge v Baldwin are similar to the observations of Lord Shand in his dissenting opinion in McArthur v Lawson at page 1138, that:

In my opinion, that summarised accurately a substantial body of prior authority. The cases of Cooper v Henderson and Mason v Scott's Trustees, cited by Gloag, are earlier illustrations of the application of the rule. In Skerret v Oliver there is a strong statement of the general position at page 485 and it is reiterated in Murray v Dumbarton County Council by Lord Pitman.

As Mr Truscott acknowledged, however, there is a growing body of opinion supporting a greater or lesser degree of qualification of the apparently absolute rule, often expressed by reference to exceptional circumstances. It is clear that any relaxation of the rule in a case where specific performance would involve prolongation of an ordinary working relationship between employer and employee would necessarily involve exceptional circumstances. The rationale for the rule has been expressed in different ways. In Gloag on Contract at page 657 it is included in a group of situations where enforcement of the characteristic obligation would involve an undue restraint on personal liberty. Gloag & Henderson 10th edition page 162 expresses the reason for the rule in different terms. Forced compliance would be worse than none. The editors cite, inter alia, modern employment legislation empowering industrial tribunals to order re-instatement or re-engagement of employees. But even in that context positive orders are understood to be infrequent and the court, not having access to the expertise available to a specialist tribunal, would necessarily be more hesitant about departing from its traditional stance. In Alexander v Standard Telephones at page 304, Aldous J said:

That coincides with the statement in Gloag & Henderson and I respectfully agree with it. There are, however, powerful contrary views. In Anderson v Pringle of Scotland Ltd. [1998] I.R.L.R. 64, Lord Prosser granted interim suspension and interdict against the intended selection of employees for redundancy on a basis which did not recognise the last in first out rule of selection alleged to be a term of the employees' contracts of employment. The effect of the orders was to interfere with the actual termination of certain contracts of employment, and therefore the decision was more far reaching than the petitioner's contentions in this case. At paragraph 10 Lord Prosser said:

He examined certain of the older authorities, concluded that the broader propositions excluding the court's jurisdiction were not determinative, and expressed the view that: "in principle it is a matter of circumstances rather than of law that interdict will usually be refused." Similar views are reflected in Robb v Hammersmith & Fulham London Borough Council, and Jones v Gwent County Council. I would hesitate at first instance to express unqualified agreement with Lord Prosser's analysis or with the English decisions he refers to. If Lord Prosser is correct, as I understand him, there would be a discretion to order implement or interdict, unrestrained by any principle of general application, but exercisable in exceptional circumstances. One might wish that there were few rules of law of such absolute character that they could not yield to circumstances where the interests of justice required that they should. But it may be that a rule is founded on considerations of such a universal character that one cannot distinguish a particular case without undermining the rule. It appears to me that that may be the situation where the question is whether the court will force parties to continue in a practical working relationship against the will of one of them. In the light of contemporary statutory developments and the trend of English authority there may be cause for a wider examination of the general rule. It may have become out-dated, and in a practical sense it may have been superseded by complex forms of employment contract which anticipate the situation which has arisen and provide for it. However, I do not consider it appropriate or necessary for me to make any observations on that wider question in the present case.

Aldous J. went on to consider cases, such as Irani in which exceptions were recognised, and where the employee's contract had not been terminated. It is that class of case which is relevant for present purposes. In my opinion, those cases at least recognise that modern employment contracts may include a range of provisions which may be enforced as between employer and employee during the subsistence of the employment without prejudice to any general rule that the courts will not enforce implement or continuing implement of a working relationship as such between the employer and the employee. In the present case the petitioner is suspended, but remains employed. He does not challenge the suspension. He does not seek any order which would affect his status as an employee. There is no suggestion at least at present that the court should make an order to keep up the relationship in any sense involving active participation in teaching or in school management. The respondents have not proposed and do not intend to dismiss him without further procedure. They intend to subject him to disciplinary procedures which are predicated on his remaining an employee at least until the proceedings are brought to a conclusion. Such a situation was recognised in Anderson v Pringle of Scotland Ltd. Lord Prosser said at paragraph 12 on page 67:

In a number of the English cases a similar approach was adopted. In ex p. Lavelle, Woolf J. refused an application for an injunction on the ground that it came too late. But he affirmed the court's jurisdiction to intervene by way of injunction: page 113. Contracts of employment do contain provisions which may be enforced. Disciplinary procedures may be of that class. In Irani v Southampton and South West Hampshire Health Authority, and Alexander v Standard Telephones Plc. differing conclusions were reached. Irani provides strong support for the petitioner. Alexander was to the opposite effect. But Aldous J.'s opinion, at pages 304 to 308, makes it clear that he dealt with the case as one in which the contracts of employment had been terminated. Marsh v National Autistic Society involved a similar situation. Mr Marsh had been dismissed. In Irani, at page 601, Warner J cited Hill v C. A. Parsons & Co Ltd. in support of the competence of injunction. These cases were cited by Lord Prosser in Anderson v Pringle of Scotland Ltd. Hill v C. A. Parsons & Co Ltd was recognised to be a very special case in Chappell & Others v Times Newspapers Ltd.: page 173-4. But Lord Denning M.R. at page 174 affirmed the reasoning in his earlier opinion. Along with Irani therefore the case points at least to an effective jurisdiction to control by injunction certain anticipated breaches of contracts of employment while the employment relationship subsists. Where the parties are in agreement that the contract of employment subsists and should subsist, albeit in a qualified form, there is in my opinion no reason in principle or in the common sense for declining to enforce provisions which can be put into effect without requiring any greater degree of contact and mutual co-operation in the carrying out of obligations derived from the employment than the parties themselves are prepared to accept. In the present case suspension is accepted. There is no current requirement to work either imposed on the petitioner, or demanded by him and resisted by the respondents. Disciplinary procedures are intended. Subject to any remaining issue of relevance, the question is whether those prescribed by binding contract can be enforced in the face of a desire by the respondents to adopt an alternative scheme. The issue, so far as it is material to categorise it for present purposes, is simply one of selection between competing mechanical provisions.

I am of opinion that the petition is competent. Since the question of amendment is outstanding, and the respondents may wish to resume their submissions on relevancy, I shall have the case put out By Order after the expiry of the period allowed for amendment and answers to consider further procedure, and I shall reserve until that hearing the disposal of parties' pleas in law to ensure that the reclaiming days do not run against the respondents meantime.