High Court Calls No Foul on Executive Termination

UK Employment Law | April.27.2015

​Say what you will about employment law in the UK but it is never boring.

Imagine that you have a senior employee who you have decided (for whatever reason) that you do not want anymore but you do not want to pay out his 12 month notice period. As an ingenious attempt to get around that, you instruct forensic investigators to carry out a ‘fishing expedition’ to try and find some dirt on him that will justify you summarily dismissing him, rather than paying out what he is owed under his contract. Imagine that your luck is in and you do indeed find some dirt but that the dirt you find is five year old dirt. Would you think that the High Court is going to accept this approach and agree that you don’t have to pay the notice period?

No, neither would we…but the High Court clearly likes to keep us all on our toes!

In Williams v Leeds United Football Club [2015] the High Court decided that this >was in fact all quite reasonable and acceptable as an approach to employees.

Mr Williams was the Technical Director at Leeds from August 2005 until his dismissal in 2013. Despite being a senior team member and, one would assume, operating in the world of football, highly remunerated, the Chairman of the club never bothered putting a contract in place but simply verbally agreed to a 12 month notice period.

On 23 June 2013, the club made its first attempt to remove Mr Williams and wrote to him giving notice of redundancy. That clearly wasn’t going to work to avoid paying his notice period, so the next day, the club wrote again, accusing him of gross misconduct. The allegations were that some five years earlier, Mr Williams had received and then forwarded onto a friend at another football club, an email containing pornographic images. This act of staggering naivety was carried out using his work email address.

Mr Williams wanted more time than offered to attend the disciplinary hearing but the club wanted to crack on, so held the disciplinary hearing in his absence five days later.

Lo and behold, the club found Mr Williams guilty of gross misconduct for his five year old one-off offending act and summarily dismissed him.

The club held that forwarding the offending email amounted to a blatant misuse of the club’s computer equipment which was a fundamental breach of Mr William’s duties and gross misconduct, having the effect of destroying the relationship of trust and confidence between the club and Mr Williams. The club did >not consider that fishing about looking for dirt had the reciprocal effect.

Mr Williams duly took himself off to the High Court to claim his notice period and loss of other benefits. It is unclear whether he also brought a claim for unfair dismissal in the Employment Tribunal and matters would have almost certainly been different in that forum, but the breach of contract claim in the High Court was given short shrift by the judge.

Mr Williams’ claims were dismissed. The quite remarkable findings of the Court were that the club had decided to get rid of Mr Williams at least a month before they dismissed him and had made a decision to try and find a way of getting rid of him without paying out his notice, so hired the forensic investigators to inspect his computer in the hope something damning would be lurking there.

It must have been a good day for the club when they found the offending five year old email and an even better day when a few months after the dismissal, it also discovered that Mr Williams had forwarded the same email to a junior and >female member of staff, at the same time.

The Court held that it was immaterial that the actions discovered had taken place over five years earlier and also immaterial that the club went looking for the dirt to avoid paying out his notice. It was also immaterial (based on past case law) that the club discovered the email that had been sent to a female junior colleague months after the dismissal.

In the Judge’s view, the fact that Mr Williams, as a senior member of staff, had sent that email was sufficient to justify his summary dismissal and amount to a breach of contract by Mr Williams such that he was not entitled to be paid his notice.

Whilst enjoyable reading, this is an unusual case and not one we necessarily recommend you learn from. The fact that he was a senior employee and the fact that football clubs and their political correctness or lack thereof, are such a focus of media attention, clearly had an impact on the judge’s reasoning.

It is settled case law in wrongful dismissal claims such as this, that relying on information that comes to light after the dismissal has taken place, to justify that dismissal is acceptable, so that part of the judgment at least was no surprise.

What is surprising is that the Court was willing to accept that acts which took place quite so long ago, that had been discovered as a result of a fishing expedition, were sufficient to justify summary dismissal and remove Mr Williams’ right to his agreed notice pay.

Mr Williams would have been well advised at the start of his career in football to follow our advice and only ever click the ‘send’ button if you would be happy for your mother to read the email.