• Employee Had Repudiated the Employment Contract by Sending Lewd Emails

    In Williams v Leeds United Football Club, the High Court has held that an employer was entitled to summarily dismiss an employee, who was already serving 12 months’ notice of redundancy, when it discovered that, five years previously, he had forwarded a pornographic e-mail to a junior colleague and two external contacts. The employer was entitled to treat this conduct as a repudiation of the contract of employment, despite the fact that it was looking for a reason to justify immediate dismissal.

    W was employed by LUFC as technical director from 2006 onwards. He was paid a salary of £200,000 per annum, terminable on 12 months’ notice. In 2013, LUFC began a restructuring exercise, which identified W’s post as being at risk. Concurrent to this exercise, the managing officers had decided to start investigations into a number of senior managers, including W, to see if evidence could be found that would justify dismissing them on grounds of gross misconduct, thereby avoiding any obligation to pay lengthy notice in the event of redundancy. This investigation extended to appointing a firm of forensic investigators to trawl through LUFC’s e-mail system.

    On 22 July 2013, the managing director was instructed to stop all payments to W, even though this would be in breach of contract. The next day, W was given was given written notice of the termination of his employment by reason of redundancy. On 24 July, the forensic investigators reported to LUFC that they had discovered one e-mail containing lewd images, which had been received by W on 28 March 2008 and forwarded by him that same day. LUFC wrote to W, requiring that he attend a disciplinary hearing on 29 July. He did not attend, and was summarily dismissed by letter dated 30 July. W pursued a claim before the High Court, contending that he had been wrongfully dismissed and was entitled to the salary he would have received during his 12 month notice period.

    The High Court dismissed the claim. It observed that, at the time of dismissal, LUFC was under the apprehension that W had forwarded the e-mail to just one person – a former colleague, and close friend, who now held a senior role at another club. However, before the Court it transpired that the e-mail had also been forwarded to a junior female employee at LUFC, and to a second former colleague. This conduct, viewed objectively, was sufficiently serious to warrant summary dismissal. Indeed, the act of forwarding the e-mail to a junior colleague would itself be sufficiently serious, since it had exposed the employer to the possibility of a claim for sexual harassment.

    The Court rejected W’s argument that, because he had worked for LUFC for a further five and a half years after sending the e-mail, his conduct had not amounted to a breach of the implied term of trust and confidence. LUFC, not knowing about the breach of contract at the time it occurred, was entitled to take action when it was discovered. It had not affirmed the breach when it gave W notice of termination with notice on 23 July, for the simple reason that it had been unaware of the breach until the following day. The Court also rejected the argument that LUFC was prevented from relying on W’s repudiatory conduct because it was actively looking for something to justify summary dismissal and thus save a substantial amount of money. It stated ‘where, as here, there is a repudiatory breach of the contract of employment by the employee, and there has been no affirmation or waiver of the repudiatory breach, the employer is not prevented from relying on that breach as justifying summary dismissal because it had itself decided to breach its contractual obligations or was looking for a reason to justify dismissal or was motivated by its own financial interests’.

    Copyright Asserted ThomsonReuters

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