Does evidence found after dismissal count?

Where an employer is actively looking for evidence to justify a dismissal, can it rely upon misconduct it later discovers to summarily dismiss and avoid paying notice pay?

In relation to wrongful dismissal claims, yes, even where the misconduct is discovered after the employee is dismissed, according to the High Court in Williams v Leeds United Football Club [2015] EWHC 376 (QB). It is likely the same principle will also apply in relation to claims for unfair dismissal but cases will be fact-sensitive.

What were the facts?

Williams was employed by Leeds United as Technical Director. He was given notice of termination by reason of redundancy on 23 July 2013 following a restructure. One week later he was summarily dismissed after the club discovered an email he sent some 5 years earlier to Dennis Wise (then employed by Newcastle United) containing pornographic images. Some months after his dismissal, the club discovered Williams had also forwarded the same email to Gus Poyet (then at Spurs) and a junior female receptionist the Leeds.

Leeds had engaged forensic investigators with the remit of discovering evidence to justify dismissing certain senior employees for gross misconduct and thereby avoid contractual notice payments (in the case of Williams around £200k).

Williams sued Leeds for wrongful dismissal claiming contractual payments including notice pay.

What did the Court decide?

Leeds were entitled to rely on conduct they knew about on the date of dismissal, as well as conduct they discovered after the dismissal, to justify the dismissal.

  • The fact the club were motivated by consideration of their own financial and commercial interests and were actively looking for evidence to justify William’s dismissal did not prevent the club from relying upon conduct amounting to repudiatory breach.
  • Williams was not wrongfully dismissed and his claim failed.

So if an employee forwards pornographic emails can we summarily dismiss them?

In most cases, yes, but you will need to carry out a full investigation, follow a fair procedure and bear in mind that each case will be fact-sensitive. It is recommended you seek legal advice before taking any action. In the Williams case it was relevant that:

Williams was a senior manager.

  • The images were pornographic and obscene.
  • Circulating such images was not common in professional football at the time (according to the Judge).
  • Images such as the ones sent by Williams were not generally in circulation in the work environment at the club.
  • Sending the images to a junior employee could have left the club vulnerable to a claim for sexual harassment.
  • The consequences of the conduct were potentially very damaging given the club’s business, in particular with the media and sponsors.

For more information about any aspects of wrongful or unfair dismissal contact the Hamlins Employment Team.