In the case of Williams v Leeds United Football Club, the High Court has held that the Club was entitled to summarily dismiss Mr Williams for a fundamental breach of contract committed by him some 5 years prior.

This was despite the fact that Williams was already serving notice, following the redundancy of his Technical Director role at the Club – and the fact that the Club was actively looking for evidence upon which it could dismiss several of its senior managers for gross misconduct.  Those active efforts extended to instructing forensic investigators to examine the Club’s email system.

After the Club had dismissed Williams on notice in July 2013, it found evidence that he had forwarded an obscene and pornographic email back in August 2008. He had sent this to the Club’s recently departed manager, Dennis Wise, together with Wise’s former assistant Gus Poyet. Williams had also sent the email to a junior female employee at the Club.

Williams argued that as he had worked for the Club for a significant period since sending the email in question, his conduct had not amounted to a breach of the implied term of trust and confidence between employer and employee. The Club, he said, should not be able to resile from the obligation to pay him the balance of his notice monies (worth some £200,000) having completed a ‘fishing expedition’ of its email system. Williams’ case was that this action amounted to a breach of contract and was a wrongful dismissal.

The High Court held that as the Club had not known of the fundamental breach of contract at the time it occurred, it was entitled to take action to summarily dismiss at the point that the fundamental breach was discovered. This is what had happened. The Club could not have affirmed Mr Williams’ breach of contract at the point that it served notice on grounds of redundancy, since it had not known about the email at that time. 

Williams’ alternative argument that the Club should be prevented from relying upon his repudiatory conduct on the basis that it was seeking a justification to avoid paying significant notice monies also failed. The Court’s conclusion was that the sending of the email to two former associates of the Club and a current employee was a sufficiently serious breach of the duty of implied trust and confidence as to amount to a repudiation of the contract. The circumstances in which the Club came to be in possession of that, and its motives for so doing, were not relevant.

This decision may seem a particularly harsh application of the rule that employers generally do not need to pay notice pay if the employee is already in fundamental breach of contract when the contract is terminated. However this is a High Court case involving purely contractual considerations. In the employment tribunal an employer cannot rely on facts not known at the time the decision to dismiss was taken to defeat a claim for unfair dismissal. It is also possible that in a purely contractual setting, an employer may put itself in breach of contract by conducting an overzealous search for material that might enable it to avoid its obligation to pay notice pay.