In Williams v Leeds United Football Club [2015] EWHC 376 (QB), the High Court rejected a claim for wrongful dismissal after a senior employee was dismissed for gross misconduct during his redundancy notice period following a discovery that, five years earlier, he had sent pornographic images from his work email address. The employee's conduct amounted to a breach of the implied term of mutual trust and confidence, which entitled the employer to dismiss him without notice.

Facts

Mr Williams was employed as technical director by Leeds United Football Club (the Club). He received a salary of £200,000 plus benefits.

Following a restructuring of the Club's operations, Mr Williams was given written notice of the termination of his employment by reason of redundancy on 23 July 2013. There was some disagreement over the correct notice period, as Mr Williams claimed to have agreed an oral contract that provided for 12 months' notice. The Club disputed this, claiming that the oral contract had ended in 2011 and his notice period was three months. 

On 24 July 2013, Mr Williams was required to attend a disciplinary hearing on 29 July 2013 to consider allegations of gross misconduct because the Club had discovered that, five years earlier on 28 March 2008, he had forwarded an email from his Club email address containing pornographic images to a male friend. Mr Williams did not attend the disciplinary hearing. 

On 30 July 2013, Mr Williams was summarily dismissed without notice for gross misconduct. The Club stated in the dismissal letter that his conduct was a fundamental breach of duties and destroyed the relationship of trust and confidence. Mr Williams appealed on the basis that he had only sent the email to one friend, who would not be offended. His appeal was not upheld.

Some months after the dismissal, the Club discovered that Mr Williams had also sent the same email with images to a junior female employee and another male friend on 28 March 2008.

Mr Williams brought a claim for wrongful dismissal claiming compensation for the salary and benefits that he would have received during his 12 months' notice period, amounting to approximately £250,000. He claimed that his actions did not amount to a repudiatory breach of contract enabling the Club to terminate his employment without notice. 

High Court decision

The Club accepted during the High Court proceedings that Mr Williams was entitled to 12 months' notice of termination unless the contract was terminated earlier by reason of gross misconduct.

The Court found that there was no evidence that anyone who was involved in the decision to give notice of termination of Mr Williams' contract on 23 July 2013 knew about the email of 28 March 2008 at that time. This was despite a finding that, by 18 June 2013, a decision had been made that the Club would investigate senior managers to see if there was any evidence to justify dismissing them.  However, the Court found that, even if those involved had known about the email being forwarded to a male friend at that time, they did not know that the email had been sent to a female employee.

The issue for the Court was whether Mr Williams' conduct was a breach of the implied term of mutual trust and confidence and if so, whether it was sufficiently serious to amount to a repudiatory breach that entitled the Club to terminate his contract of employment immediately and without notice on 30 July 2013.

The Court held that Mr Williams' conduct, namely, using his work email address to send to a junior female employee and two other male friends an email with a number of obscene and pornographic images, amounted to a breach of the implied term of trust and confidence and it was a sufficiently serious breach to amount to repudiation of the contract by Mr Williams. This was because: (1) he was in a senior management position; (2) the images he sent went beyond harmless and offensive but rather were vulgar and obscene; (3) he sent them to a junior female employee at the Club, which could have exposed the Club to a harassment claim by her; and (4) the potential effect on the Club's reputation and media interest by sending the email from the Club's email address with reference to "dirty Leeds" in the email itself.

The Court held that the conduct amounted to gross misconduct and the Club was entitled to rely upon that conduct as justifying the summary dismissal of Mr Williams.

The Club was therefore entitled to rely on Mr Williams' conduct on 28 March 2008 as a repudiatory breach, which justified the termination of his employment without notice on 30 July 2013. The Club was not liable to pay damages for wrongful termination comprising the salary and other contractual benefits that would otherwise have been payable during the notice period.

Comment

Although it was clear that the Club had intended to stop paying notice pay before notice was served and had commenced investigations to actively seek evidence of misconduct, there was no evidence that it knew of the email dated 28 March 2008 before redundancy notice was given. It was key that Mr Williams was in a senior position and that he had sent the pornographic email to a junior female colleague. Despite the conduct taking place over five years earlier, the sending of the email was still a breach of the implied duty of trust and confidence.

This decision makes it clear that sending an obscene email at work is a repudiatory breach of contract. It was not relevant in this case that the email had been sent more than five years earlier or that the employer was looking for evidence that would justify terminating Mr Williams' employment without notice so that it could avoid paying him a substantial amount of notice pay. Had the Club known about the email earlier and done nothing, the outcome would have been different.

It is being reported that Mr Williams is bringing an unfair dismissal claim against the Club.