Does a delay in the discovery of a pornographic email prevent it from being a repudiatory breach?

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(Williams v Leeds United Football Club)

Mr Williams was employed as a Technical Director by Leeds United Football Club (the club) from August 2006 until his summary dismissal for gross misconduct on 30 July 2013.  The terms of his employment were orally agreed at the outset and included an entitlement to 12 months’ notice.

The club decided to restructure in 2013 and on 23 July 2013, Mr Williams was informed that he was entitled to three months’ notice, in accordance with its standard senior management contract.  The following day, the club wrote to Mr Williams setting out two allegations of gross misconduct and inviting him to a disciplinary hearing on 29 July 2013. The first allegation concerned a pornographic email Mr Williams had received on 28 March 2008, stored on the club’s equipment; and then, on the same day, forwarding this content on.  The second allegation was that Mr Williams had forwarded confidential information to his personal email account.  Mr Williams asked for the hearing to be postponed, but this was refused, and the hearing took place on 29 July 2013 in his absence.

On 30 July 2013, the club wrote to Mr Williams, informing him that he had been found guilty of both allegations, and had been dismissed without notice or pay in lieu of notice.  The letter informed Mr Williams that he had breached the club’s internet and email policy; and could also bring the club’s name into disrepute as it was forwarded from his work address.

Mr Williams appealed against his dismissal, and the club’s chief executive upheld his appeal in respect of the second allegation (relating to forwarding of confidential information).  However, the chief executive did not uphold Mr Williams appeal in relation to the first allegation, nor did he overturn the decision to summarily dismiss Mr Williams for gross misconduct.  The chief executive accepted that Mr Williams may not have received a copy of the club’s policy on internet and email use.  However, he considered that, as a member of the senior management team, and someone whom young players and prospects looked up to as an authority figure, Mr Williams should have known that his actions were unacceptable.

Mr Williams issued a claim for damages in the High Court for 12 months’ notice pay, loss of pension, other contractual benefits, and a statutory redundancy payment.  After proceedings had been issued and it had filed its defence, the club discovered that, on 28 March 2008, Mr Williams had also forwarded the pornographic email to two other people; one of which was a junior female employee within the club.  The club therefore amended its defence accordingly.

The High Court noted that as early as 18 June 2013, senior managers of the club wished to find a way to avoid paying Mr Williams 12 months’ notice pay, and were actively seeking evidence of gross misconduct.

Despite the fact that the club had instructed forensic investigators on or around 18 June 2013 with the aim of finding incriminating evidence on Mr Williams’ computer, the High Court dismissed Mr Williams’ claim for wrongful dismissal. It found that his actions amounted to a breach of the implied term of mutual trust and confidence, which entitled the club to summarily dismiss him.  The court held that, in line with established case law, the club was entitled to rely on its discovery of further emails after the dismissal to justify its decision to dismiss.  Of particular significance to the court was that Mr Williams held a very senior role, that the images were clearly capable of causing offence, that they were sent to a junior female employee and that there was a significant risk of damage to reputation.  The fact he had not received the internet and email policy was not considered important.

Jo Tindall Says:  The decision in this case is fact specific; the employee held a very senior position and the employer was a football club subject to public and media attention.  Perhaps surprisingly, the court offered no criticism of the club for instructing forensic investigators to search Mr Williams’ computer records specifically to find a reason to justify not paying him.  Additionally, the delay in taking action was not fatal, as the club took action when it found out about the offending conduct.

If a claim of unfair dismissal had been brought in similar circumstances, it may very well have been decided differently, given the requirements for procedural fairness.


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