The case of Tenon v Cawley (Tenon FM Ltd v Cawley & Ors [2018] EWHC 1972 (QB)) highlights several important lessons for claimants (and employers) not least that the claimant needs to be able to prove the most basic of issues when bringing proceedings for breach of contract: that the defendant has signed and agreed to the contract upon which the claimant seeks to rely.

The claimant (Tenon) sought an injunction against a former employee (the first defendant, Miss Cawley) and her current employers. It was alleged that the first defendant was in breach of restrictive covenants in her written contract of employment.

Miss Cawley had started work for the claimant in 2008; by the time she gave notice of termination on 3rd May 2018 she was Tenon’s Operations Director and a member of its Senior Leadership Team.

The claimant’s case was that Miss Cawley had been employed in 2008 by written contract, which had been replaced by a 2011 contract. Although the 2008 contract contained certain restrictive covenants, those in the 2011 contract were more onerous. Tenon had been unable to locate a signed copy of either contract. Tenon then discovered a further unsigned contract, containing the same restrictive covenants as the 2011 contract, and subsequently relied on that 2012 contract as opposed to the 2011 contract. Its evidence in support was silent as to whether any consideration had been provided in respect of any the covenants it sought to rely on.

Ms Cawley said that she had refused to sign either the 2011 or 2012 contract because she did not agree to the restrictions. She also contended that she had been given yet another contract in 2015 which contained no restrictive covenants. Miss Cawley, was not able to produce a copy of that contract, which she says she did not sign and Tenon were unable to find any evidence of a new draft contract of employment in 2015.

The judge dismissed the claimant’s application for an injunction saying “the claimant fails on this fundamental issue as a result of a combination of factors, namely the absence of a signed contract and the absence of any evidence - that there was any valuable consideration, let alone adequate consideration, given for Miss Cawley entering into either the 2011 or 2012 Contracts containing more onerous restrictive covenants than were present even in the 2008 Contract”.

The judge was also critical of the statement of costs produced by the claimant, and the manner in which the applicant was pursued. The claimant purported to have spent £200,000 in bringing the injunction which were “clearly disproportionate”, which was itself a further factor that he took into account in refusing the application.

Employers should take note of this dismissal and ensure that all employees have signed employment contracts, and where issues arise, that adequate documentation of conversations relating to contracts are placed on the employees personnel file. Litigants should take heed of the risk of applying to the court without any written evidence on which to rely.