Leeds Utd employee’s red card upheld for foul email

Citation

Doble, E. (2015), "Leeds Utd employee’s red card upheld for foul email", Strategic HR Review, Vol. 14 No. 6. https://doi.org/10.1108/SHR-09-2015-0074

Leeds Utd employee’s red card upheld for foul email

Article Type: Strategic commentary From: Strategic HR Review, Volume 14, Issue 6

Emma Doble

Emma Doble is based at Bond Dickinson, Plymouth, UK.

Introduction

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.

Brief summary of the 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. 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 asked to attend a disciplinary hearing to consider allegations of gross misconduct because the Club had discovered that five years earlier, in 2008, he had forwarded pornographic messages from his Club email address.

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, but his appeal was unsuccessful.

Some months after the dismissal, the Club discovered that Mr Williams had sent the same email to a junior female employee and another male friend in 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 breach of contract, enabling the Club to terminate his employment without notice.

Analysis of high court decision

The Club accepted during the proceedings that Mr Williams was entitled to 12 months’ notice unless his 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 in July 2013 knew about the emails in 2008 at that time. This was despite a finding that by 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. The Court found that even if those involved had known about the email being sent to a male friend, they did not know that the email had been sent to a female employee.

The Court had to decide whether Mr Williams’ conduct was a breach of the implied term of mutual trust and confidence and if it was so serious that it entitled the Club to terminate his contract without notice on 30 July 2013.

The Court held that Mr Williams’ conduct entitled the Club to terminate his employment without notice. This was because:

• he was in a senior management position;

• the images he sent went beyond harmless and offensive but were vulgar and obscene;

• he sent them to a junior female employee at the Club, which could have exposed the Club to a harassment claim; and

• the potential effect on the Club’s reputation and media interest.

The claim for damages for wrongful dismissal was, therefore, dismissed[1].

It was clear that the Club was looking for a way to avoid paying notice pay by actively seeking evidence of misconduct by senior managers. However, there was no evidence that the Club knew about the 2008 email before redundancy notice was given. It was a key factor that Mr Williams was in a senior position and he had sent the image to a junior female employee. Although Mr Williams asserted that he had not seen the Club’s internet policy, he had been with the Club for two years before sending the emails and should have been aware that the Club’s email system was not to be used for these purposes.

It is a surprising decision that there was a breach of the implied duty of trust and confidence when the conduct had taken place five years earlier. If the Club had known about the email earlier and not acted on it, then the decision would probably have been different.

What can employers do to prevent misconduct during a notice period?

There can be a risk that the employment relationship deteriorates once an employer or employee has given notice.

The main way in which an employer can prevent misconduct during the notice period is by including a garden leave clause in the contract. This provision, often seen in senior service agreements, gives the employer the right to require the employee to stay at home during the notice period. The employee cannot contact customers, suppliers or other employees and cannot join a competitor. He or she continues to receive salary and benefits while serving notice. Another option is to enter into a settlement agreement with the employee, under which he or she gives up employment claims in return for receiving a payment. It can be made a condition of payment that the employee does not do anything in breach of the employment contract or the settlement agreement.

The importance of ensuring notice periods are set out and agreed to in written contracts

This case is a reminder of the importance of having a written contract of employment that contains clear provisions relating to notice and termination. Mr Williams claimed to have an oral contract stating his notice period was one year, although there was some uncertainty about this.

Although all employees have the right to a statutory minimum notice period, it is important to have an express clause in the contract setting out the agreed notice period, which will often be longer than the statutory minimum. Any variation to the contract of employment should be in writing, and in this case, the Club should have had a written document showing that the notice period had changed from one year to three months.

The issues surrounding oral contracts – how to prove this?

To bring a claim for breach of contract, it must be shown that the contract existed in the first place, which can be difficult if there is no written record. In these situations, a court often has to rely on oral evidence from witnesses and any other document that may make reference to there being an agreement in place, for example, emails and texts. Having a written contract provides clarity and can help to prevent disputes. In addition, an employer is legally obliged to provide a written statement of particulars of employment to an employee within two months of their start date and a failure to provide one can lead to an employment tribunal awarding compensation of two or four weeks’ pay.

A version of this article also appears on www.lexology.com[2] and www.bonddickinson.com/[3]

Notes

[1] Williams v. Leeds United Football Club [2015]

[2] www.lexology.com/library/detail.aspx?g=cb966ddf-05b7-480d-b5f9-e51c3576690a

[3] www.bonddickinson.com/insights/publications-and-briefings/leeds-utd-employees-red-card-upheld-foul-email

Reference

Williams v. Leeds United Football Club [2015], TLQ/14/1059, Royal Courts of Justice February 19, 2015.

Corresponding author

Emma Doble can be contacted at: emma.doble@bonddickinson.com