Employment Cases Update

Lew v The Board of Trustees on behalf of United Synagogue [2011] EWHC 1265 (QB)

Date published: 30/05/2011

Application for continuation of an injunction preventing the employers from instigating any procedures relating to the claimant's ability to perform his role, for either capability or misconduct. The order was continued until trial.

The claimant was senior Rabbi at a London synagogue. There were concerns about his ability to perform that role, with complaints received from members of the congregation, and various steps were undertaken in line with the relevant bye-laws. Eventually, after a performance review, a meeting was requested by letter under a Capability Procedure though the letter amended the terms of that procedure.


The claimant subsequently instigated these proceedings claiming that the Capability Procedure was trumped-up and was in reality an attempt to remove him from his post. An injunction was granted following a without notice hearing. In this review, HHJ Robinson, sitting as a High Court Judge, reviews the procedures and the evidence from meetings concerning the claimant's performance. He notes that the court has the power to make the injunction sought provided there has been no breakdown of mutual trust, which was agreed, and there is a serious question to be tried, which he identifies as the main issue at stake. He concludes that there was a real prospect that the claimant could demonstrate the procedure was trumped up and that the order was proposed was reasonable.

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Case No: HQ/11/01017

Neutral Citation Number: [2011] EWHC 1265 (QB)

IN THE HIGH COURTS OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 23rd March 2011

BEFORE:

HIS HONOUR JUDGE ROBINSON (Sitting as a Judge of the High Court)

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BETWEEN:

RABBI MENDEL LEW (Claimant)

- and -

THE BOARD OF TRUSTEES ON BEHALF OF UNITED SYNAGOGUE (Defendant)

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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

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Approved Judgment

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JUDGE ROBINSON:

1. 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 20th 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.

2. The Claimant fears that moves are afoot to displace him from his post. At a hearing made without notice on 17th 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. It appears to me from the documents placed before me that certainly since 28th October 2007, there have been meetings between the Claimant and members of the Honorary Executive Committee. The minutes of the meeting held on 28th 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 19th 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 21st March 2011. He is the Director of External and Legal Services of the United Synagogue. He exhibits minutes of meetings with the Claimant on 18th January 2010 (page 22) and 8th 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.

9. On 8th 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.

10. 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 the capability to perform the duties required of him as the Senior Rabbi of one of the US's flagship Synagogues; and

(ii) The measures put into place, with RML's agreement of assistance and support had not been successful in order to be able to develop the capability of the Rabbi to a standard required of him in the performance of his duties.

(e) PH asked RML if he had any comment.

(f) RML stated that he wanted to focus on the things that Rabbis do. He felt he had upped his game.

(g) PH went on to state that in view of the Executives' decision, the Executive would be asking the US to hold a meeting under their US Capability Procedure. If the US agreed, RML Lew would next be hearing from the US HR Department with a copy of the US's Capability Procedure and a date for a formal meeting.

(h) There then followed some discussion and explanation of the Capability Review in terms of panel and process, during which RML noted that when he had been brought into Stanmore Synagogue he understood that he had been brought in to do a different job to the one his predecessor had done and to the one required now.

(i) PH closed the meeting at 10.45p.m."

11. The reference to the Capability Procedure is significant. A copy appears annexed to the Claimant's second witness statement at pages 112 to 116. At the foot of each page on the left-hand side is the footer: "Reviewed February 2011" It was disclosed at this hearing that in fact this procedure was the first such procedure and, that before this document was created, there was nothing to review. It was first seen by the Claimant when he received it under cover of a letter dated 23rd February 2011, which appears at page 1 of the exhibits to Mr Fry's witness statement. The Capability Procedure begins by making this observation:

"Introduction. It is the United Synagogue's policy to support you in the carrying out of your duties. However, dismissal by reason of capability (including medical incapability) is a fair reason for dismissal."

There is then a footnote referring to s.98 of the Employment Rights Act 1996.

"Incapability in this context is defined as where an employee is lacking in knowledge, skill or ability and so cannot carry out your duties to the standard required. The procedure is intended to be a developmental tool to support both you and your line manager to ensure minimum standards of performance and capability are maintained throughout United Synagogue. This procedure does not form part of your contract of employment and it may be amended at any time. We may also vary any parts of this procedure including any time limits as appropriate in any case."

12. Under the heading "Procedure" there is what appears to me to be a three-stage process which is described. Stage 1 comprises what is described as an informal meeting with the employee's line manager. Following an agreed period given for improvement another meeting, again presumably informal and again presumably with the line manager, would be arranged. That seems to me to be stage 2. The document continues and goes on to describe what seems to me to be stage 3, in these terms:

"If your performance has still not improved to an acceptable standard a formal meeting will be held."

Miss McKie says that we are at the end of stage 2 and about to embark upon stage 3. The last meeting was held on 8th February 2010. Certainly on the information before me, which I accept is necessarily incomplete and which has not been the subject of cross-examination, it is difficult to see how that meeting could be described as informal. It seems that three members of the Honorary Executive Committee, including the chair, were present together with two members of the Defendant's Human Resources Department. It is similarly difficult to interpret the earlier meeting on 8th November 2010 as informal. Mr Kaplan from the Defendant's Human Resources Department was there, as was Mr Hertz, the chair of the Honorary Executive Committee and two other persons who seem to have been members of the Honorary Executive Committee.

13. Nowhere, before delivery of the letter dated 23rd February 2011, was there any indication given to the Claimant that his job may be at risk. At the end of the meeting in November 2010, which I presume was the stage 1 informal meeting, it is recorded that Mr Kaplan said to the Claimant that he had to: "Take this meeting very seriously indeed." At the end of the meeting on 8th February 2011, which as I say, I take as the stage 2 meeting, Mr Hertz is recorded at paragraph 3(d) of the minutes as having told the Claimant this, and I make no apologies for repeating this quotation:

"Mr Hertz explained that he meant by this that:

(i) The Executive considered that RML did not have the capability to perform the duties required of him as the Senior Rabbi of one of the US's flagship Synagogues; and

(ii) The measures put into place, with RML's agreement of assistance and support had not been successful in order to be able to develop the capability of the Rabbi to a standard required of him in the performance of his duties.

That is not, in my judgment, an explicit explanation that the Claimant was about to enter into stage 3 of a disciplinary process that might lead to his dismissal. Stage 3 comprises a formal meeting. In contrast to the Bylaw procedure the Claimant is limited in his choice of person allowed to accompany him to the meeting. He is permitted to bring only a union representative or a work colleague. The procedure provides that a further chance to improve will be given. Following that three-stage process the capability procedure moves to dismissal. Before any dismissal decision is taken the employee will be invited to meet the: "United Synagogue." It is wholly unclear who from the United Synagogue will attend. Again, the Claimant is limited to being accompanied by the same class of person as before, the union representative or a work colleague. In the event of dismissal there is a right of appeal.

14. I turn to the letter dated 23rd February 2011, which I read in full. It can be found, as I have said, at page 1 of the exhibits to the witness statement of Mr Fry:

"Dear Rabbi Lew,

Following your Performance Review meeting on 8th February 2011 the United Synagogue has received a request from the Chair of the Executive of Stanmore and Canons Park Synagogue to hold a meeting under the United Synagogue's Capability Procedure to consider whether you have the capability to perform the duties required of you as the senior Rabbi of Stanmore United Synagogue.

A copy of the US Capability Procedure is enclosed and, in accordance with that procedure, you are required to attend a hearing at the Centre, 305 Ballards Lane, London N12 8GB on Friday, 11th March.

The hearing will consider the Report which was handed to you at the Review meeting and, for the sake of completeness, a further copy of that report is enclosed.

The following documents are also considered to be relevant and copies are enclosed:

1. Statement of Terms and Conditions of Employment with Appendices

2. Meeting Notes of 18th January 2010

3. Meeting Notes of 8th November 2010

4. Summary Objectives/Timescales/Metrics document agreed at 8th November 2010 meeting

5. Meeting Notes of 8th February 2011

If there are any further documents you wish to be considered at the hearing, please provide copies as soon as possible and no later than 2nd March 2011. If you do not have those documents, please provide details so that they can be obtained.

Phillip Hertz, Chairman of Stanmore United Synagogue and Jacqui Rudolph, Vice-Chairman will be attending in order to present the Report and provide additional information. If you wish to call any other colleagues, Board of Management or other members, who are relevant to the matter in hand, in support of your capability to perform your duties, please let our HR Department have their names as soon as possible and no later than 2nd March 2011.

In order to ensure a fair hearing this matter has now been escalated to a Trustee of the United Synagogue and Steve Pack, a Vice-President will be chairing the meeting. In addition a representative of the HR Department will attend the meeting to take notes and, unless you object before 2nd March 2011, we intend to invite Rabbi Shlomo Levine, to be in attendance, as a technical advisor to the Chairman. You are entitled to bring a colleague who must be an employee of the United Synagogue or a trade union representative to the meeting in accordance with the Capability Procedure. If you wish to bring such a companion, please let our HR Department know their name as soon as possible.

During and after the meeting the Chairman will consider whether or not you have the capability to perform the role of Senior Rabbi of Stanmore United Synagogue, consulting with others as appropriate, and will then make a decision either that there is no case to answer, or if it is considered that you lack the capability to perform the duties required of you, you may be given time to improve. You should note that failure to improve may lead to your dismissal. The Chairman will meet with you again to give his decision and you will have a right of appeal to an Ad Hoc Committee comprising of the President or Vice-President of the United Synagogue, a Vice-President, a Treasurer of the United Synagogue and a representative of the Rabbinical Council.

If you have any queries regarding the contents of this letter please contact me or a member of my HR team as soon as possible."

15. It can be seen that that letter amends the procedure in the Capability Procedure document. Instead of the formal meeting being conducted by the line manager it will be conducted by Mr Pack, a vice-President Trustee of the Defendant. It was proposed to invite a Rabbi to act as technical advisor. In the letter it was stated that Mr Pack would consult with others as appropriate, although before me it was made plain that would not now happen. In place of the written Capability Procedure allowing a further chance to improve is the more vague statement: "that you may be given time to improve." It appears obvious to me that this procedure gives the Claimant many fewer rights than that provided by the contractual Bylaw procedure. In particular: (1) he is limited in his choice of representative; (2) instead of the matter being considered by a three-person committee and a member of the Rabbinical Council, it appears to me that it is proposed that a single person would take the decision whether or not to dismiss. This follows from two things: First, the reference in the letter dated 23rd February to the formal meeting being conducted by Mr Pack. Second, the reference in the Capability Procedure to the appeal process where it is envisaged the appeal will be heard by the relevant senior manager. I note that the appeal process referred to in the letter of 23rd February is different from the Capability Procedure document.

16. It is also relevant to consider the role of Mr Kaplan in this. There is a serious factual dispute between the Claimant and Mr Kaplan concerning what was said in a conversation between those men on 23rd February 2011 when Mr Kaplan hand-delivered the letter of that date. However, even on the account given by Mr Kaplan in the written statement at pages 96 to 99 of the bundle exhibited to the Claimant's second witness statement, there is cause for real concern about the motives of the Defendant. On three occasions he says he told the Claimant to obtain independent legal advice. There was discussion about winning and losing and about the possible resignation of the Chair of the Honorary Executive Committee and of other members if the Claimant won. Those references appear to me to be inconsistent with the stance of the Defendant at the hearing before me, namely that all the Defendant wants to do is help the Claimant. The Claimant's short point is this. It is submitted on his behalf that the sudden invention of a Capability Procedure is a cynical attempt to use it specifically with a view to get rid of him. Miss Romney described it as a "trumped up procedure." The Claimant's argument is that any attempt to use it against the background of this case and on the facts of this case amounts to a breach of contract.

17. Until the meeting of 8th February 2011 there had been no mention of a procedure that might lead to the dismissal of the Claimant on capability grounds. This, submits Miss Romney, appears only to have occurred after the taking of the legal advice referred to in the minutes of that meeting. She referred me to the case of Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust [2009] EWHC 2360 QB. There Holroyde J dealt with a case involving a surgeon who had made a series of errors. A contractual Capability Procedure was first followed, then the Defendant NHS Trust changed tack and purported to dismiss him on the basis that there had been a breakdown in trust and confidence. At paragraph 41 of his judgment Holroyde J said this:

"It is, in my conclusion, arguable that in truth what has changed since late 2008 is that the defendant has simply decided that an alternative and better way to proceed would be to change the course which had been set and to dismiss on a different basis. Crucially the change of course has occurred whilst the course initially set was still being followed and before any destination had been reached."

18. Miss Romney sets out her case in support of her contention that this is a trumped up procedure whose sole object is to secure the dismissal of the Claimant at paragraph 20 of her skeleton argument. She refers to two matters with which I have not previously dealt. The first is that there has in fact already been a contractual disciplinary hearing. It took place on 2nd December 2010. It concerned an alleged breach of confidence on the part of the Claimant. A decision to dismiss the charge on the basis of there being no case to answer was made on 8th December. The very next day notice was given of the meeting which took place on 8th February 2011. It was at that meeting that mention was made for the first time of the new Capability Procedure. There is at the very least a very strong inference that the Capability Procedure was devised in response to the perceived failure of the disciplinary proceedings. This inference is strengthened by a passage in the letter dated 23rd February 2011, which refers to one possible outcome of the stage 3 formal meeting, being that the Claimant may be able to: "Show no case to answer," the very basis upon which the recent disciplinary proceedings were concluded. Speaking for myself I am surprised the Capability Procedure document purports not to be contractual. If it is not contractual it is difficult to see what it is. As such, it is at least arguable it was introduced in breach of the Claimant's contract, which provided that changes in terms and conditions would only be effected after due notice and consultation, particularly when it seems to be the case that the document was created with the Claimant specifically in mind. The short point on behalf of the Defendant is this: the Defendant is perfectly entitled to introduce a procedure whereby issues concerning capability can be adjudicated in a fair and just manner.

19. Miss McKie submits that the Claimant has to show that none of the issues of concern raised by the Defendant are capable of being considered to relate to the Claimant's capability. She recognises that in this respect capability must relate to an issue going to knowledge, skill or ability and, by way of example, she points to a passage in the minutes of the meeting dated 8th November 2010 where it is recorded that the Claimant: "Admitted the weakness overall is in his organisational capabilities." The Defendant's case is simple. If an issue might arguably go to capability, then that is an issue for the Defendant to resolve in accordance with its Capability Procedure. On its own, that is an attractive submission, but it ignores all of the other matters I have described above.

20. The whole tenor of the minutes of the meetings seem to me to relate a perceived neglect of duty on the part of the Claimant. It seems to me clear that the investigation and discussion related to complaints concerning the manner in which the Claimant either was or was not discharging his duties. That seems to me fall squarely within the remit of Bylaw N15(a). Furthermore, it seems to me to be at the very least arguable that the procedure under Bylaw N15(a) is sufficiently flexible to encompass a complaint that the Claimant's failure to discharge his duties relates to his knowledge, skill or ability. In the first instance the complaint is to be considered by the Honorary Officers of the United Synagogue who: "Shall use their best endeavours to resolve the matter satisfactorily." That obligation is clearly sufficiently wide to allow the provision of help and assistance in a case relating to capability. It is to be noted that distinctions are drawn in the Bylaw between: first, misconduct; second, neglect of a duty and; third, breach of a duty. The latter events, neglect of duty and breach of duty, may arise without any misconduct on the part of the Rabbi or Minister in question.

21. I recognise that it is not possible to make any findings of fact in a case such as this. The evidence is necessarily incomplete. Such evidence as I have had is in written form and has not been tested in cross-examination. That is why my investigation is limited to whether there is a serious question to be tried. In my judgment there are serious concerns relating to the motives of the Defendants in this case. There is, in my judgment, a real prospect of demonstrating at trial that the Capability Procedure has indeed been trumped up as another means of dismissing the Claimant for reasons that do not go to any genuine concerns relating to his capability. If established that would amount to a plain breach of contract.

22. In my judgment it is right that the Claimant should have the opportunity to explore that at trial and that until then a halt should be called upon any and all disciplinary or capability proceedings. It seems to me, although I will hear argument, that the order proposed by the Claimant is reasonable and proportionate. This matter needs to be resolved speedily and matters will not be put on hold for very long. In any event, application can be made to vary the order before trial and I will hear counsel on the form of order and consequential directions.