In the case of Williams and Leeds United Football Club [2015], the High Court considered whether the Claimant was entitled to be paid  12 months’ notice pay, despite having been found by his employer to have sent pornographic images to three individuals five years earlier, which conduct was discovered after he had been given notice of termination.

When the Club discovered the Claimant had sent the pornographic pictures, it argued that this was a repudiatory breach of the employment contract between the parties, and the Club was therefore entitled, on a strict contractual basis, not to pay the Claimant’s 12 months’ notice.

As background, Mr Williams was in a senior management role at Leeds United Football Club.  He was on a salary of £200,000 per annum.  The Club decided to restructure its operations and the Claimant was given written notice of the termination of his employment by reason of redundancy. 

After the Club had given the the Claimant notice of termination,  it discovered  that the Claimant, five years earlier, had received and forwarded (via his work email address)an email with attachments to an individual at another football club.  The message in the email said: “Looks like dirty Leeds!” and attached to the email were a number of photographs, which the Claimant accepted were vulgar and some of which were obscene.  The Court determined that the photographs taken as a whole could properly be characterised as obscene and pornographic.

The reason  the Club discovered the email was because  it had decided on or before the Claimant was notified of his redundancy not to make payments of salary to the Claimant during his notice period and  actively to look for evidence of gross misconduct for which they could dismiss the Claimant.  About a week before the Club notified the Claimant of his redundancy, the Club had instructed forensic investigators to see if evidence could be discovered to justify summarily dismissing him on  grounds of gross misconduct.

One day after being told his employment was being terminated for redundancy, the Claimant was invited to a disciplinary meeting to consider the allegation referred to above of gross misconduct, in that he had stored pornographic material and forwarded that material outside the Club. The Claimant did not attend the disciplinary meeting. He was dismissed for gross misconduct and his appeal against his dismissal was rejected.

The Claimant brought a claim for wrongful dismissal for his 12 months’ notice pay.

Subsequently the Club discovered that the Claimant had also forwarded the email to two other people, one of whom was a  younger and junior female employee at the Club.  The Claimant accepted that he was in a position of power and seniority  compared  to the female employee.  The Claimant said that he had forwarded the photographs to the female employee as she was a particularly keen Leeds United fan and would appreciate the play on words in the email, which explanation the Court said was not credible.

It was accepted by the Club that the Claimant had not been provided with a copy of its internet and email code of practice prior to his dismissal. The Club did not therefore seek  to rely on  this policy, but relied on the breach of the implied duty of mutual trust and confidence owed by the Claimant to the Club.

In wrongful dismissal cases, employers can justify summary dismissal by reference to conduct which amounts to a repudiatory breach of contract, even if the conduct was not known to the employer at the time of  termination.  The Court determined that the Claimant’s conduct amounted to a breach of the implied term of trust and confidence and was sufficiently serious as to amount to repudiation of the Claimant’s contract. The Court found that although the Claimant had not been provided with the internet and email policy, it should have been obvious to the Claimant that the Club’s email system should not be used to send obscene and pornographic images. 

The Claimant argued that as the Club had already decided, before it had given him notice to terminate his employment, not to pay his notice pay and it was actively seeking to find evidence to justify his dismissal without notice.  The Claimant said this was unfair conduct involving bad faith, and the Club should not be allowed to avoid paying his notice pay. 

The Court rejected this argument and found that the fact that the Club had decided not to pay any further salary payments before the Claimant’s contract had been brought to an end and were actively looking for evidence to justify the Claimant’s dismissal summarily, did not prevent the Club from dismissing the Claimant summarily when it discovered the misconduct.

The Court found that the Club did not know about the Claimant forwarding the email with the pornographic photographs at the time  he was given notice for redundancy.  If the Club had  known about the email when it  sent the letter notifying him of his redundancy and giving him  notice,  it would have affirmed the Contract and not been entitled to resile from paying the notice pay.  However, it did not know, and was entitled not to pay the notice pay in question. 

This is a harsh decision, but it illustrates the strictness of a contractual test, which is only concerned with what actually happened, and not the surrounding circumstances.  The Club may have been “out to get” the Claimant, and the incident may have occurred five years ago, but the fact remains he repudiated his contract, and that was all that mattered.