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Employers Can Rely on Historical Acts of Gross Misconduct to Justify Not Paying Notice
Employer who actively looks for reasons not to pay a notice period can rely on historical wrongdoing that they were not aware of at the date of dismissal.
The High Court has decided in Evan Gwyn Williams v Leeds United Football Club that an employer can rely on acts of gross misconduct which occurred five years previously, despite the fact that it only discovered the conduct when actively seeking a reason to justify immediate dismissal rather than pay the Employee during his notice period.
Mr Williams was employed as Technical Director by Leeds Football Club and his duties included identifying and nurturing young talent including being responsible for a number of students who attended the Respondent's Academy between the age of 8-21. He should therefore be setting an example and acting as a role model.
In the summer of 2013, the Respondent decided to carry out a restructure which identified the removal of the Claimant’s role. He was put at risk of redundancy and consultation meetings were held with him on 10 and 23 July 2013. On 23 July 2013 the Claimant was given written notice of termination of his employment by reason of redundancy, it is important to note that he was not told that he would be paid in lieu of notice or terminated immediately, but told his employment would end on expiry of a notice period.
There was a dispute between the Respondent and the Claimant as to the appropriate length of notice but it was accepted by the parties at the High Court that the correct notice period was twelve months.
The Respondent actively sought to find a reason to dismiss the Claimant summarily for gross misconduct, so as to avoid having to pay him for his notice period. The Respondent had started that process by 20 July 2013 at the latest, but more likely beforehand and in any event before the Claimant was given notice of termination. Having used forensic investigators, it was discovered that the Claimant had received and forwarded an email, from his work email account, on 28 March 2008, which contained a series of vulgar and pornographic photographs. Initially, it was only discovered that the Claimant had forwarded this email to a friend, Mr Dennis Wise, who was employed to work at another football club.
The Claimant was invited to a disciplinary hearing on 29 July 2013 to consider two allegations of gross misconduct; storing pornographic material on a computer belonging to the club and forwarding that material to a person outside the club on 28 March 2008. The Claimant asked for an adjournment but the hearing proceeded in his absence. The Claimant was dismissed summarily without notice on 30 July 2014 having been found to be in contravention of the Respondent’s internet and email code of practice (“the Code”), guilty of gross misconduct and a fundamental breach of his duties and had destroyed the relationship of trust and confidence between him and the Respondent.
The Claimant appealed the decision on the basis that he had forwarded the email to a personal friend and it would not have offended him and he also said that he had never received a copy of the Code. An appeal hearing was held on 13 August 2013 at which the Claimant’s appeal was dismissed. The Respondent decided that as a member of the senior management team, the Claimant should have known that his actions were unacceptable and could have damaged his own reputation and the reputation of the club.
It subsequently transpired that the Claimant had not only forwarded the email to Mr Wise, but also to another friend, Mr Gus Poyet of Tottenham Hotspur and also Ms Lamb, who was a 33/34 year old receptionist working at the Respondent’s Thorp arch training ground. Ms Lamb was the only employee that he sent the email to, she was one of the most junior employees working for the Respondent and the Claimant was aware that she was a single mother that needed her job with the Respondent.
The High Court confirmed that the sending of such obscene and pornographic emails to two male friends at other clubs and to a junior, female employee was sufficiently serious to amount to a breach of the duty of implied trust and confidence as to amount to a repudiation of contract.
The High Court also confirmed that an employer may justify summary dismissal by reference to conduct, even if the conduct was not known to the employer at the time of termination but was discovered only subsequently. The Respondent was therefore entitled to rely on the Claimant’s conduct on 28 March 2008 to justify the his dismissal on 30 July 2013, and as it was unaware of the conduct prior to that point it had not affirmed any repudiatory breach.
In this case the Respondent had made the active decision to find a reason to summarily dismiss the Claimant and to try to avoid having to pay his notice period. This decision had been made prior to giving notice to dismiss the Claimant on the grounds of redundancy on 23 July 2014. The Claimant argued that this was unfair or involved bad faith. The High Court said that “if the conduct does amount to a repudiatory breach by the employee, then the employer is entitled to rely upon that repudiatory breach as justifying the dismissal irrespective of the employer's motives or reasons for wishing to do so”.
So whether an employer’s motivations are financial and commercial, fair or foul, if an employee is guilty of conduct that amounts to a repudiatory breach, an employer can justify dismissal.
This is an extremely useful case for employers where they have employees on long notice periods and they are looking for means to avoid making the outstanding contractual payments.