#6731 - Powell V. Brent London Borough Council - Commercial Remedies BCL

Powell v. Brent London Borough Council

Facts

The plaintiff, Mrs. Paulina Powell, became employed by Brent London Borough Council in December 1983. Her conditions of employment at that time are said to include various procedures which the council have agreed to apply with reference to all the men and women working for the borough. They include what one would expect: the necessary period of notice for determination of the contract; disciplinary procedure for any breach of discipline, with rules and a system of appeal; and they also include the council's code of practice for the elimination of discrimination and the promotion of equal opportunity in employment.

Claimant’s application for promotion: In November 1986 the plaintiff was employed as a Senior Benefit Officer in South Kilburn. She was concerned with the administration of housing benefit. She saw an advertisement containing a description of the post to which I have referred. It represented significant promotion for her with a salary increase of about 3,000 per annum and advancement in responsibility. She applied. She was interviewed on 27 November 1986. Another candidate interviewed was Mr. Steve Barrett, who was also employed by the council as a Senior Policy and Training Officer (Housing Benefits). Mr. Connell informed the plaintiff by telephone that the appointment subcommittee had selected her. The plaintiff says that she was also told to report at her new place of work the next day.

The other candidate’s complaint: On 1 December Mr. Barrett, pursuant to his conditions of employment, inquired as to why he had not been selected for the job. Mr. Connell, in accordance with the code of practice, saw him. Mr. Barrett handed in a letter explaining his grievance. He believed himself to be better qualified for the job than the plaintiff.

Claimant told to re-apply: On 26 January the plaintiff was told of the decision of the subcommittee that the post be re-advertised. She was asked to re-apply for the job when it was re-advertised. The plaintiff says that she was distressed and upset. She responded in a letter dated 28 January 1987 which seemed to me to be a mixture of good sense and of angry allegations of dishonourable and improper conduct, including racist opposition to her as a black woman.

Holding

Claimant’s argument – seeking injunction

Put very shortly, her case was that if the council were allowed to advertise again and to fill the post she could not then be confirmed in the post, even if she won the case. She could recover damages for estimated loss of earnings. The common law rules relating to damages would preclude recovery for her disappointment at losing this important promotion and for the loss of her pleasure and satisfaction in doing more demanding and responsible work. The argument was that the preservation of her place in the post pending the trial of her right to it was therefore necessary to protect her from severe loss from which she could not be adequately protected by an award of damages.

Mutual Confidence Requirement – Principles

For my part on this issue I have reached the conclusion that the decision of Knox J. cannot stand. I have reached that conclusion with hesitation because it seems to me essentially unlikely for a plaintiff to be able to satisfy the court that, despite strenuous opposition by her employers to her continuing in her job, nevertheless there subsists the necessary confidence between her and her employers to justify the making of an injunction. The fact of the opposition is likely in my view to be a true indication of the absence of confidence, but as I said at the outset I think this is a most unusual case.

First I must state the principle which must, I think, guide our decision. It is clear to me that part of the basis of the general rule against specific performance of contracts of service is that mutual confidence is normally a necessary condition for the satisfactory working of a contract of service. If one party refuses to allow the relationship to continue the mutual confidence is almost certainly missing.

….the court will not by injunction require an employer to let a servant continue in his employment, when the employer has sought to terminate that employment and to prevent the servant carrying out his work under the contract, unless it is clear on the evidence not only that it is otherwise just to make such a requirement but also that there exists sufficient confidence on the part of the employer in the servant's ability and other necessary attributes for it to be reasonable to make the order. Sufficiency of confidence must be judged by reference to the circumstances of the case, including the nature of the work, the people with whom the work must be done and the likely effect upon the employer and the employer's operations if the employer is required by injunction to suffer the plaintiff to continue in the work.

Mutual Confidence – application to facts

The council is a large organisation employing many people in different departments. It is vastly different from a man or woman with a small business, partnership or small firm with a small staff. The council is also an organisation which, among the senior staff, who must, by their view and attitudes, greatly affect the attitudes of others, is a rational and fair-minded organisation well able to accept the independent view of the court as to the fair and proper basis of preserving the rights of the parties pending trial.

Against Mr. Connell's one sentence directed to the answers at interview, which in my view was consistent with the plaintiff having in fact done the job...