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Employment Law

Legal guidance - compliance - software

09 OCT 2014

Ashworth and Others v The Royal National Theatre [2014] EWHC 1176 (QB); [2014] IRLR 526; (2014) EMPLR 049

Edward  Benson


15 April 2014

Administrative Court

Cranston J

This case illustrates that courts will not order specific performance of a contract of employment other than in exceptional circumstances.

The National Theatre used a combination of live music and recorded music in its staging of War Horse in London. Elsewhere in the world, it had used only recorded music. The live music was actually played in a separate room but relayed into the auditorium. The score required a full orchestra so most of it was recorded with a few instruments playing live to accompany the recorded music.

The National Theatre decided it would improve the performance if all the music was recorded. It terminated the contracts of the musicians. The musicians’ contracts permitted termination only in limited circumstances, which did not include redundancy. The musicians therefore regarded the termination of their contracts as a breach of contract which they did not accept. So they turned up for work as normal but were turned away. They then applied to the court for an order for specific performance of the contract – ie an order that the National Theatre continue to employ them.

The court agreed that the termination was a breach of contract. However, orders for specific performance are not granted for contracts requiring personal service where trust and confidence has broken down or where a continued relationship is unworkable or constant supervision by the court might be required. Here there was a loss of confidence because, in the theatre’s artistic judgment, a live band did not provide the same quality and impact of performance as recorded music. There was a risk, if a court of imposed the musicians on the theatre, that the musicians would know that the theatre did not believe they should be there. It would also not have been workable because the play had been rehearsed without a live band. An order for specific performance would also affect the right of the theatre to artistic expression as guaranteed by Article 10 of the European Convention on Human Rights. The order for specific performance was therefore refused.

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