Court refuses to grant specific performance of employment contract
An order for “specific performance” is an order of the court to compel one party to perform its contractual obligations. In the case of Ashworth and others v Royal National Theatre [2014], a number of employees sought an order for specific performance, to require the Royal National Theatre (“the Theatre”) to continue to engage them in a production of “War Horse”.
The employees were musicians engaged by the Theatre. After a period, the Theatre took the decision that it would prefer to use recorded music in the production for “accuracy and impact”, rather than live music played by the musicians. On 4 March 2014, it gave notice of termination to the employees on the grounds of redundancy.
On the 15 March 2014, the employees attended work as normal and affirmed their employment contracts, but were sent home. The employees subsequently brought claims for breach of contract, the basis of their claim being that the reason for termination (redundancy) was not one permitted by their contracts. Under the contract, termination could only occur in set circumstances, for example, upon the closure of the production etc.
The employees sought specific performance of their contracts until the trial of their claim.
The High Court refused the employees’ application. It held that specific performance of employment contracts is only ordered in exceptional cases and this was not an appropriate case.
The Court considered the case of Powell v Brent London Borough Council [1988] in which specific performance was, unusually, ordered in respect of an employment contract. One of the key points in that case was that there was a good working relationship between the employee and his superior, so that it would not have caused too much issue for him to return to work on an interim basis until the trial of his claim.
The Courts must look to the balance of convenience, including considering the prejudice to the claimant on the one hand if specific performance is not granted, and the prejudice to the employer on the other hand if it is. The court should take whichever option it considers will cause the least irreparable damage.
In the present case, the Court considered that there had been a loss of confidence by the Theatre in the musicians. In its evidence, the Theatre did not consider that the musicians could “contribute positively to the play and is better of without them…there [was] a real risk that there could be destabilising impact”.
Further, the Court held that an order for specific performance would interfere with the Theatre’s right to freedom of expression, namely artistic expression (Article 10 European Convention on Human Rights).
On that basis, the Court ruled in favour of the Theatre and refused the employees’ application for specific performance.
Comment
The outcome of the case will be welcome news for employers as it reinforces the long-standing principal that specific performance of employment contracts should only be available in exceptional circumstances.