Repudiatory breach despite five year delay in discovery

In the recent case of Williams v Leeds United Football Club the High Court held that it was a repudiatory breach of contract for a senior employee to forward an email containing pornographic images from his work email account. This entitled the employer to summarily dismiss the employee despite the fact that the employee had forwarded the email over five years before it was discovered, and that the employer had been actively looking for a reason to avoid paying the employee’s 12 months’ notice pay.

Facts

The claimant, Mr Williams, was employed by Leeds United from August 2006 in the role of Technical Director on a 12 month notice period. On 23 July 2013 Leeds United issued Mr Williams with 3 months’ notice of termination due to redundancy. The club had decided that they did not want to pay Mr Williams his full 12 month notice. They had also instructed a firm of forensic investigators from June 2013 to find evidence of gross misconduct on his computer.

Just one day after the club served notice, the investigators found evidence of an email Mr Williams had forwarded to a friend at another football club which contained a pornographic image which was sent in 2008. The club wrote to Mr Williams on 24 July setting out allegations of gross misconduct and inviting him to a disciplinary hearing. Mr Williams was dismissed and the decision to dismiss was upheld on appeal.

Mr Williams issued a claim in the High Court for wrongful dismissal and damages in respect of his 12 months’ notice pay, loss of pension, loss of contractual benefits and loss of a statutory redundancy payment. Following the issue of the claim by Mr Williams, Leeds United had discovered that the pornographic email had also been forwarded to two other people: a junior female employee at the club and to another male employee friend at another club.

Decision

The court dismissed Mr William’s claim as it considered the sending of the email to have amounted to a breach of the implied duty of trust and confidence. Such breach was sufficiently serious to be considered a repudiatory breach which entitled the club to summarily dismiss. The club had moved quickly to dismiss once they discovered the breach so the five year gap was not important.

The court acknowledged there had been a fishing exercise by the club but considered that an employer is entitled to rely on a repudiatory breach regardless of their motives. It was considered that despite never being shown a copy of the club’s code of practice on email and internet usage, Mr Williams should have known due to his seniority that such conduct was unacceptable. Particular emphasis was placed on the fact that the employer was a football club which was subject to media attention and important relationships with sponsors and fans.

Comment

This case highlights the difficulties when trying to remove employees on long notice periods and why 12 month notice periods are increasingly unpopular. It is, however, unusual that the employer came under no criticism from the court for their behaviour despite the “fishing exercise” and obvious intent to escape a contractual obligation. Employers should avoid having to rely on trust and confidence arguments and should ensure that any policies regarding email and internet use are clearly communicated to staff.

Although many years had passed the club acted very quickly when they became aware of the misconduct so could not be considered to have waived the breach and affirmed the contract. The court commented that, if the club had known of the email on 23 July 2013 when it sent the letter notifying Mr Williams of his redundancy, that letter would have amounted to an affirmation of contract. Employers in a similar situation should be very careful to avoid doing or saying anything that may be taken as an affirmation and negate their right to rely on the employee’s breach.