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High Court shows the red card to gross misconduct

Can an employee be dismissed without notice because of a pornographic email they sent five years ago? 

'Yes', says the High Court.

The facts

The employee was a technical director at Leeds United Football Club. On 23 July 2013 the employer gave notice of redundancy to the employee. The employer then wrote to him alleging that he had committed an act of gross misconduct, by forwarding a pornographic email to a junior female colleague and to another person outside the football club, five years previously. Following a disciplinary hearing the employee was found guilty of gross misconduct and was dismissed without notice.

The High Court's decision

The High Court said that:

  • it did not matter that the employee had not seen or been given a copy of the employer's internet policy as it should have been obvious that the employer's email system should not be used to send pornographic images;
  • it was not relevant that the employee continued to work for the employer for several years after he forwarded the email. His conduct was sufficiently serious to enable the employer to dismiss the employee without notice;
  • it did not matter that before the discovery of the email the employer had been actively seeking evidence of gross misconduct so it would not have to pay the employee his notice pay entitlement; and
  • it did not matter that the employer had only found the email the day after it gave the employee notice of redundancy. The employer was able to rely on the discovery of gross misconduct after the dismissal on notice to justify its decision to dismiss the employee summarily.

The High Court held that the email had left the football club vulnerable to both harassment claims and negative press which had the potential to damage the club's reputation. The employee's conduct was sufficiently serious and had damaged the relationship of trust and confidence between the parties. This breach of the employment contract entitled the employer to dismiss the employee without notice.

Comment

This case is a rare example of a situation where an employer has successfully relied upon a breach of the relationship of mutual trust and confidence. In this case, the employee's senior role and the fact that the employer was a football club and vulnerable to public and media attention were key to the decision. 

Employers should also note that this was a High Court case in which the issue was whether the employee was entitled to be paid his notice moneys, rather than a case of unfair dismissal in the Employment Tribunal. Employment Tribunal cases on misuse of company email and internet tend to put greater weight on the question of whether the employee had access to company email and internet use policies.

For more on the decision, click here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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