iAny skeletons in your workplace cupboards? Never too late to dust them down, it appears from the High Court’s decision in Williams -v- Leeds United Football Club earlier this month.
Mr Williams had a 12 month notice entitlement from Leeds and a basic salary of around £200,000. On 23 July 2013 he was given notice by reason of redundancy, but just a week later he was then dismissed summarily without the balance of his notice period or any payment in lieu. In the course of his resulting wrongful dismissal claim it became apparent that the Club was desperate to find ways of dismissing a number of staff (including Williams) without paying them notice if at all possible. While Williams was being made redundant, and unknown to him, private investigators were already combing through his emails and expenses looking for something, anything, to hang him with.
Just a week into his notice period, the PIs struck what they thought was gold – a small number of pornographic emails sent from his LeedsUnited.com address on one day over 5 years earlier to friends at other clubs and a junior female employee within Leeds United itself.
Was that enough to deny Williams his notice entitlement? Surely not – the emails had been sent over 5 years ago, there was no evidence of any others of the same sort being sent before or since and none of the recipients (including the junior female) had made any complaint about their content. Surely a summary dismissal 5 years later was excessive?
Had this been an unfair dismissal claim, possibly so. Such conduct could certainly have justified a dismissal at the time but in the absence of any recurrence or fall-out from it in the intervening years, it might have been hard to dismiss Williams fairly. However, the rules of contract law are different. If it can be shown that misconduct pre-termination was repudiatory in nature (i.e. was “likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”) then it can be relied upon by the employer even if it is only discovered afterwards. It can then be used to deny the employee pay in lieu of the balance of a notice period already given. Mr Williams lost his claim.
The striking thing about the High Court’s decision here is that in looking at the question of whether the conduct was repudiatory, it paid no heed to the passage of time and to the variety of unpleasant consequences which, although they could have arisen, actually had not. There had been no harassment claim, no adverse PR, no aggravation of sponsors, etc. None of this mattered, said the High Court – it had been gross misconduct back in 2008 when the emails were sent, and so still was. It is possible to conclude that any flexibility open to the High Court in reaching this conclusion was lost to Williams the moment he suggested in evidence that the junior female employee would take pictures of naked women showering and simulating sex with each other as “a giggle”. If defending the indefensible were an art form, that was definitely one for the Tate.
It was also held irrelevant that the Club had been actively searching for grounds to do Williams out of his notice entitlement. Again, this might potentially be relevant to an unfair dismissal claim but in the black and white world of contract, you are either guilty of repudiatory conduct or you are not. How and why your employer comes across the evidence is immaterial if you were foolish enough to create it in the first place.
With apologies for how distasteful this no doubt sounds, therefore, if an employer is facing an extended notice pay claim and wants to get out of it, it could do worse than have a run through the employee’s emails and expenses. Something you find there could save you a fortune, as here. There is however a prospective downside – if it becomes known that you do this, then you can expect your employees to trust you as little as you clearly trust them. Among the sort of senior executives who have the lengthy notice periods which would be worth the expense of the enquiry, this could be an employment relations disaster.
