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Injunctions at Work

by Published on

We thought it might prove useful to include an occasional feature covering an HR topic in slightly more detail. This month we look at Injunctions and their application in the workplace.

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Definition: Injunction

Injunctions can be used in a variety of circumstances but typically it is an Order from the Court that prevents or compels a party to act in a particular way.

Because of the nature of this legal instrument it’s not surprising that an injunction isn’t always a certainty to obtain given it’s made at the Court’s discretion.

The terms for granting an injunction:

  • You’re not looking for a BOGOF deal, that is you are asking the Court to grant just the single injunction.
    • If you’re requesting an injunction you do so having followed the appropriate procedures, not cut corners yet acted swiftly.
    • You’ve satisfied the Court that financial compensation would not be an adequate remedy.

There are two types of Injunction, they can be either “On Notice” or “Without Notice”

“on notice” as it suggests this is where you are communicating with the other side (party) and advising that you are seeking the injunction, confirms when an application has been made and where and when it is being heard.

“without notice” injunctions are only granted where the applicant can provide sufficient supporting evidence as to why they shouldn’t inform the other side of their intentions. Typically, a “without notice” application will be granted where the Court agrees with the applicant that notification could result in the destruction of essential evidence, data, money or where a competitive threat may be realised through prior communication.

When to Consider Injunctions in HR Matters

  • If you have a senior member of staff likely to cause damage through poaching customers and they are in breach of restrictive covenants.
    • Where there is a suspicion that a member of staff may be in the process of passing on confidential data such as a database of customers to a competitor.
    • In circumstances where there is strong suspicion of fraud.
    Balancing Act
    Before granting an employment injunction the Court will need to weigh up the consequences for both business and employee. These specific factors to be considered are called the “balance of convenience” test of which these are examples;
  • Fully evidenced actual or clearly stated potential damage to the applicants business.
    • Impact on the respondent/ employee.
    • Contract and commitment of employee to adhere to terms.
    • Measures sought proportionate to the risks.

Overall the Courts role is to consider the merits of the case.

The reason why an injunction is a last course of action yet can be so effective is the fact that the ultimate sanction for any breach of an injunction is imprisonment.

If you have any queries or concerns relating to injunctions or their possible implementation,

please contact Robert Gibson on 0191 232 8451

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