Lew v Board of Trustees of United Synagogue
| Jurisdiction | England & Wales |
| Judge | Judge Robinson |
| Judgment Date | 23 March 2011 |
| Neutral Citation | [2011] EWHC 1265 (QB) |
| Date | 23 March 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ/11/01017 |
[2011] EWHC 1265 (QB)
IN THE HIGH COURTS OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Robinson
(Sitting as a Judge of the High Court)
Case No: HQ/11/01017
Miss Daphne Romney QC (instructed by Browne Jacobson) appeared on behalf of the Claimant
Miss Suzanne McKie (instructed by Ross and Craig) appeared on behalf of the Defendant
The Claimant is the senior Rabbi of the Stanmore and Cannon Park Synagogue. He is employed by the Board of Trustees of the United Synagogue, which is a charity. He was appointed to this post in 2006. According to his witness statement dated 20 th March 2011, the Synagogue has nearly 3,000 members. The Stanmore Synagogue is managed by a body of persons described as the Honorary Executive Committee.
The Claimant fears that moves are afoot to displace him from his post. At a hearing made without notice on 17 th March 2011, Davis J granted an interim injunction restraining the Defendant from continuing with or instigating any procedures concerning the Claimant's ability to perform his job whether relating to issues of capability or misconduct. He seeks continuation of that relief until trial or further order. In essence the injunction forbids the Defendant, which is the Board of Trustees of the United Synagogue, from disciplining or dismissing the Claimant.
Miss Daphne Romney, Q.C., has appeared for the Claimant. Miss Suzanne McKie has appeared for the Defendant charity. I am grateful to both of them for their helpful submissions.
There is, I think, broad agreement concerning the legal principles to be applied in a case such as this. First, and as a necessary preliminary consideration, it is agreed that the court has power to make such an order such as that sought provided there has been no breakdown in the mutual trust and confidence essential to the continuation of a contract of employment. Both sides assert that as yet there has been no such breakdown. Second, the Claimant must show that there is a serious question to be tried. The Claimant says the serious question arises out of the arguable case that the Defendant is proposing to and will, unless restrained by injunction, breach the contract of employment. The Defendant says that there is no arguable case in breach of contract. Third, if there is a serious question to be tried the court must consider the adequacy of damages as a remedy on both sides. Here, Miss McKie very properly concedes that damages would not be an adequate remedy for the Claimant. She rightly and properly observes that it is arguable that there are, what she helpfully describes in her skeleton argument as, reputational consequences for the Claimant. Fourth, as part of the enquiry concerning the adequacy of damages as a remedy, I ought also to consider the issue of an undertaking in damages. So far as an undertaking from the Claimant is concerned it is, in truth, difficult to see what financial loss the Defendant would suffer if injunctive relief were to be continued. However, the Claimant does not appear to have any substantial assets and his income is derived from the Defendants. Fifth, accordingly, both parties point towards the balance of convenience or, as it has sometimes been labelled: "The balance of risk of doing an injustice" — see per May LJ in Kayne v. Global Natural Resources Plc [1984] 1 All ER 225. In terms of the balance of convenience it plainly lies in favour of restraining the Defendant from doing unlawful acts in circumstances where it is doubtful that such restraint would result in any measurable loss being sustained by the Defendant. Thus, in my judgment, the principal issue in this case is whether the Claimant has demonstrated that he has an arguable case in breach of contract.
The starting point must be the contract. Clause 16 provides that:
"The Disciplinary rules applicable to you are contained in Bylaw N15(a) of the Constituent Synagogues."
Clause 17 contains provisions concerning the grievance procedure. Clause 19 is headed: "Change in terms and conditions" and provides that:
"Changes will be effected only after due notice and consultation in accordance with the applicable legislation."
Bylaw N15(a) provides as follows:
"If any misconduct or neglect of duty or breach of any of his duties under his Agreement of Service be alleged against a Minister of this Synagogue it shall be referred to the Honorary Officers of this Synagogue. They shall use their best endeavours to resolve the matter satisfactorily but should they not be able to do so they shall refer the matter to Honorary Officers of the United Synagogue who shall set up an Ad Hoc Committee consisting of the President or a Vice-President of the United Synagogue, a Vice-President, a Treasurer of the United Synagogue and a representative of the Rabbinical Council (in the case of a Rabbi/Minister) and a representative of the Association of Ministers (Chazanim) (in the case of a Minister/Reader). The Minister against whom the complaint is alleged shall be afforded the opportunity of attending a meeting or meetings of the Committee and if the Minister so wishes he may be accompanied by a colleague or other person. The Committee shall invite the Honorary Officers of the Synagogue and any other person considered appropriate to attend a meeting or meetings. The Committee shall report its findings to the Honorary Officers of the United Synagogue and their decision after consultation with the Ecclesiastical Authority of the United Synagogue shall be final."
The significance of that Bylaw appears to me to be this. First, the provision of a Committee of three persons; second, the addition, in the case of a Rabbi, of a member of the Rabbinical Council to that Committee; third, the right to be accompanied by: "A colleague or other person." That other person could clearly be a legal representative and fourth; the limitation and scope to three areas of performance, namely misconduct or neglect of a duty or breach of any duties under the contract.
It appears to me from the documents placed before me that certainly since 28 th October 2007, there have been meetings between the Claimant and members of the Honorary Executive Committee. The minutes of the meeting held on 28 th October 2007 begin at page 25 of the exhibit to the Claimant's second witness statement. It ends:
"Will continue to give support and shield RML from criticism. Demand immediate improvement. Will need to involve Head Office should the situation not change dramatically."
At page 30 is a letter dated 19 th May 2009. It proposes:
"… a more formalised framework against which we can make some objective measurement of your performance. This will be used for the purposes of an annual performance review and the assessment of any bonus payment that might be appropriate. Such a process will also overcome the problems we've had this year over salary increase and bonus in terms of providing justification for the US remuneration panel."
The letter goes on to deal with various matters, but makes specific reference to complaints and states that in relation to specific matters:
"… any complaint received which is properly substantiated will be viewed very negatively."
I have also seen the witness statement filed by Mr Saul Fry, dated 21 st March 2011. He is the Director of External and Legal Services of the United Synagogue. He exhibits minutes of meetings with the Claimant on 18 th January 2010 (page 22) and 8 th November 2010 (page 25). The latter are to be read alongside a four-page document starting at page 28 setting out in tabular form a list of objectives expected of the Claimant.
On 8 th February 2011 there was a meeting attended by members of the Honorary Executive Committee, the Claimant and Rabbi Schochet, together with a note-taker and two members of the Human Resources Department of the United Synagogue, they were Mr David Kaplan and Mr Thomas Cole. The minutes, which begin at page 32 in the exhibit to Mr Fry's witness statement, run to 11 closely typed pages and it is noted that the meeting finished at 10.45 in the evening.
At the meeting a report dealing with the Claimant's performance since November 2010 was distributed. It appears from my reading of the minutes that this was the first time that the Claimant had seen this report. The minutes end with a section headed: "Going Forward" and is in these terms:
"(a) PH stated that this whole process up to now had given neither himself nor the Executive any pleasure. The Executive wanted RML to know that none of them had envisaged that they would be embarking upon this sort of process when they first came into post.
(b) The key factors that had prompted this process were:
(i) The many complaints from members and;
(ii) The Executive's review of appraisals from past Executives for the last five years, all of which highlighted issues in the areas which have come to light during this performance review.
(c) PH stated that Stanmore was looking for a sea change in the performance of the Rabbi. Having carried out this review and taken legal advice, PH stated that he regretted to say that in his opinion and the opinion of the Executive, RML had not performed the major objectives set out in the performance review and that it was now considered not to be a question of performance or conduct but of capability.
(d) PH explained that he meant by this that:
(i) The Executive considered that RML did not have...
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