THE MAJOR LEGAL SIGNIFICANCE of the case of Williams v Leads United Football Club (2015) is that it demonstrates that in wrongful dismissal cases, misconduct discovered long after a dismissal may be used to justify the summary dismissal (“dismissal without notice”) of an employee.
In the Williams’ case, the club would have been saved the sum of £200 000 by the discovery of the pornographic emails made over five years prior to dismissal. The claimant’s contract had a 12-month notice period which meant that if the summary dismissal was not justified, the claimant’s salary for the full period was payable.
However, the case will be remembered for a number of other reasons. One of those is the importance of having a policy governing the treatment of emails, the Internet and social media in relation to the workplace. It is also necessary to communicate that policy to the employees so that it becomes incorporated into their contracts.
The Leads United Football Club at the time of the case had an email policy in effect. Among the provisions of that policy were:
“(a) Email must only be used in the reasonable conduct of the firm’s business.
(n) No information must be transmitted which could bring the company into disrepute which contravenes laws and conventions on . . . sexual grounds. Information is understood to include text, images and sound.
• An employee may not use the email to transmit:
• Words of pictures, which are obscene, lewd or pornographic;
• Words or pictures, which could amount to harassment of the recipient or any other individual (be that harassment sexual, racial or otherwise).”
The club’s Internet policy further provided that abuse of the electronic mail facility or failing to comply with the code of practice amounted to “serious disciplinary matters” for which the employee would “be dealt in accordance with the company’s disciplinary policy.”
On the facts, the claimant’s evidence that he was not provided with the club’s Internet policy was accepted. However, Lewis J. concluded that it should have been obvious, especially to a person in senior management, that the club’s email system should not be used to send obscene and pornographic images and that his conduct would amount to a breach of the policy.
It is possible that especially for lower-level employees, in the absence of an Internet policy properly communicated and brought to their attention, a court or tribunal may find that a dismissal based on such a policy is wrongful or unfair. It is therefore, recommended that employers should have a policy and that employees should be made aware of it.
Of course, as the Williams case illustrates, employees ought to be careful of what they communicate via email and other forms of communication over the Internet.
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com
