IF THERE WAS any doubt that the common law concept of wrongful dismissal exists alongside that of unfair dismissal in jurisdictions such as ours that have introduced a statutory regime of unfair dismissal, the recent English high court case of Williams v Leads United Football Club Ltd (2015) is a timely reminder.
In that case the judge relied substantially on an old English case: Boston Deep Sea Fishing and Ice Company v Ansell (1888) which is authority for the proposition that an employer may justify summary dismissal of an employee for misconduct which amounts to a repudiation of the contract even if the contract was not known to the employer at the time of the dismissal but was discovered subsequently.
The claimant, Gwyn Williams, was employed by Leeds United Football Club as technical director under an oral contract negotiated with the chairman of the club which gave him an annual remuneration package of £230 000 (approx.) and a 12-month notice period of termination. After about seven years into the job, the club embarked on a senior management restructuring process and Williams was given three months’ written notice of redundancy on the basis that the 12-month notice no longer applied and that the club’s standard notice period of three months for senior employees was applicable.
A day later the club again wrote to Williams accusing him of gross misconduct and inviting him to a disciplinary hearing. He was subsequently dismissed without notice following an appeal from the first hearing which he did not attend.
The club had discovered through a forensic investigation that Williams had forwarded (using the club’s e-mail) obscene and pornographic pictures displaying naked women and in a few cases their genitalia, to two individuals from separate football clubs and to a junior female employee of the Leeds United Football Club.
It is on the basis of the above information which had occurred over five years before the termination (as was not known at the time of termination) that the club maintained that they were not obliged to compensate Williams and were justified in terminating him without notice.
The court decided that the club was justified in dismissing Williams. The following extracts from the judgment reflect the rationale for the court’s decision:
50) an employer may terminate an employee’s contract of employment without notice in circumstances where the employee’s conduct amounts to a sufficiently serious breach of a term of the contract of employment such that the conduct amounts to a repudiation of the contract. Further, the employer may justify summary dismissal by reference to such conduct even if the conduct was not known to the employer at the time of termination but was discovered only subsequently.
60) Viewed objectively, the use of the club’s email system to send obscene and pornographic images to a junior female employee, and then to two other male colleagues employed in the world of professional football, is simply incompatible with the role and duties of the claimant as a senior manager of the club. The claimant’s conduct in forwarding those emails on the three occasions on 28 March 2008 was a very serious breach of the implied duty of trust and confidence and was likely to destroy the confidence that the club had in its senior manager. The conduct was sufficiently serious to amount to a repudiation of the contract of employment and club was entitled to treat that conduct as justifying summary dismissal.”
Williams’ claim was for wrongful dismissal. Had he also made a claim for unfair dismissal that matter would have gone before an employment tribunal and the relevant statutory provisions relating to the same would have applied and not the common law of wrongful dismissal which is rooted in the law of contract.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]
