Historic Misconduct Justified Dismissal Despite Employer Looking for Reason to Dismiss

An employer was entitled to summarily dismiss an employee when it discovered that he had forwarded a pornographic email from his work email address five years’ previously. The fact that the employer was looking for a reason to justify his immediate dismissal and avoid paying notice made no difference.

In Williams v Leeds United Football Club, W was employed by LUFC as technical director from 2006. In 2013 he and a number of other senior employees were put at risk of redundancy as a result of a restructuring. At the same time an investigation was carried out into a number of senior managers, including W, to see if evidence could be found that would justify dismissal on grounds of gross misconduct and avoid the obligation to pay notice pay.

On 23 July W was given 12 months’ notice of the termination of his employment by reason of redundancy. The next day, forensic investigators reported to LUFC that they had discovered an email containing lewd images which had been received by W five years’ previously on his work email and forwarded by him the same day to a former colleague. He was invited to attend a disciplinary hearing and when he did not attend, he was summarily dismissed for gross misconduct by letter dated 30 July.

W brought a High Court claim for wrongful dismissal, claiming damages in respect of his salary and benefits for his 12 month notice period. The High Court rejected his claim, accepting the employer’s argument that W had acted in serious breach of the implied term of trust and confidence. At the time of dismissal, LUFC understood he had forwarded the email to just one person, a former colleague and close friend. However, before the court it transpired that he had also forwarded the email to a junior female employee at LUFC and to a second former colleague. The employer was entitled to rely both on the conduct it knew about at the time of dismissing and conduct discovered subsequently to justify dismissal. The conduct, viewed objectively, was sufficiently serious to justify summary dismissal. Indeed the court considered that the act of forwarding the email to the junior colleague was sufficiently serious in itself to justify dismissal since it had exposed the employer to the risk of a sexual harassment claim.

It made no difference that W had worked for the club for a further five years after the misconduct, or that the club had been looking for a reason to justify his dismissal or that it was motivated by its own financial interests.

This case makes it clear that employers are able to look for grounds for summary dismissal in order to avoid obligations to pay notice and can rely on historic misconduct provided they did not know about it at the time. In this case the employer searched through work emails but employers could equally trawl through employees’ social media postings to see if they have posted anything which could damage the employer’s reputation and give grounds for summary dismissal.

Employers do, however, need to be careful to avoid doing anything after they discover a breach of contract which could be viewed as affirming the contract as continuing. In this case, if the employer had issued the redundancy notice after discovering the misconduct, the court may have found that it had affirmed the contract and lost its right to rely on the breach and dismiss for gross misconduct.

Employers also run the risk that an employee who finds out about their snooping will argue that this in itself is a breach of the implied term of trust and confidence by the employer entitling the employee to resign and claim both their notice pay and unfair dismissal.

Although employers are able to rely on misconduct discovered after dismissal when defending a wrongful dismissal (breach of contract) claim, the same is not the case when defending a claim for unfair dismissal. In an unfair dismissal claim, the fairness or otherwise of the dismissal is judged by reference to the reason the employer had in mind at the time it dismissed. However, misconduct discovered subsequently may result in compensation being reduced.