Williams v Leeds United Football Club [2015] EWHC 376 (QB)

Case No TLQ/14/1059[2015] EWHC 376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/02/2015
Before
MR JUSTICE LEWIS
Between
WILLIAMSClaimantLEEDS UNITED FOOTBALL CLUBDefendant
Mr Daniel Barnett (instructed by Lawrence Stephens) for ClaimantMr Fraser Campbell (instructed by Brandsmiths) for DefendantHearing Hearing dates: 9 th, 10 th& 11 th February 2015
Judgment

INTRODUCTION

[1]This is a claim by Evan Gwyn Williams for damages for wrongful termination of his contract of employment with Leeds United Football Club Ltd. (“the Club”). In brief, the Claimant was employed under a contract which required 12 months notice of termination. He was given notice of termination on 23 July 2013. Had circumstances not changed, the contract would have terminated at the end of that 12 month notice period and he would have been entitled him to receive his salary which amounted to £200,000 and certain other benefits payable during the notice period. However, on 30 July 2013, he was summarily dismissed, that is the contract of employment was brought to an end immediately and without notice, for gross misconduct. The Claimant contends that that dismissal was wrongful and claims compensation for the balance of the salary and contractual benefits that would have been paid during the notice period if the contract had not been terminated on 30 July 2013.[2]The Club contends that, after notice of termination was given, it discovered that the Claimant had used the Club’s e-mail system on 28 March 2008 to forward an e-mail together with pornographic images to a male friend at another football club. They dismissed the Claimant on 30 July 2013. Furthermore, some months after the dismissal they discovered that the Claimant had also forwarded the e-mail and the pornographic images to a junior female employee and another male friend at another football club on 28 March 2008. The Club contends that the conduct, taken as a whole, amounted to gross misconduct entitling the Club to dismiss the Claimant summarily on 30 July 2013. They also contend that, in so far as they discovered some of the acts of misconduct after the dismissal, they are still entitled to rely upon those acts to justify the summary dismissal, relying on the principles established in Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch. D. Consequently, they contend that they are not liable to pay damages for the salary and other contractual benefits that would otherwise have been payable during the notice period if the contract had not been terminated on 30 July 2013.[3]In response, the Claimant contends that the conduct complained of, whilst inappropriate and not best practice, did not amount to a breach of contract, or at least did not amount to a sufficiently serious breach such as would entitle the Club to treat the conduct as a repudiation by him of the contract of employment enabling them to terminate the contract without notice. He contends, therefore, that he is entitled to the unpaid balance of his salary and certain other benefits that would have been payable during the notice period.[4]I heard evidence from the Claimant and from Ms Greer who has been employed by the Club as a finance controller since January 2008. Many of the facts are no longer in dispute. Where they are in dispute, I set out my findings of fact and the reasons for them below. THE FACTS

The Contract of Employment and the Claimant’s Work

[5]The Claimant has worked in professional football for about 35 years. Prior to August 2006, he was employed to work for Chelsea Football Club. That employment came to an end. He was then offered a job as Technical Director of Leeds United Association Football Club by the chairman, Mr Ken Bates. The offer was accepted. The terms and conditions were agreed orally and neither a written contract of employment nor any written statement of the particulars of employment were prepared.[6]The terms of the contract were that the Claimant would be employed from 1 August 2006 on a salary of £200,000 per annum, terminable on 12 months notice, and would be entitled to pension contributions, death-in-service benefits and use of a mobile phone for personal purposes. Leeds United Association Football Club Ltd. went into administration. The undertaking (essentially the football club) was transferred to the Club. The Claimant’s contract of employment continued with the Club on the same terms. The role of Technical Director was a senior management role. The most senior management role was that of chairman and then the chief executive officer and the Claimant was on a par with, or possibly just below, the chief executive officer in terms of seniority.[7]Among the Claimant’s duties were identifying and nurturing young talent. The Club had an Academy with students from as young as 8 to the age of 21. Some of the students between the age of 17 and 21 would become part of the first team. The Claimant would oversee the training of the first team and the other students. He accepted that his role involved offering guidance and acting as an example or role model to these young persons and children. Training would take place at Thorp Arch training ground, a Club facility at Weatherby. The first team and about 14 students would train in the day time. The other students (about 80), aged from about 8 to 16, would train on certain evenings.[8]The Claimant gave evidence, which I accept, that sponsorship is very important in the modern football game. He accepted that the Club had sponsors who were companies which were household names. He accepted that sponsors would be cautious about associating with a football club if that might risk damaging their own reputation. The Claimant also gave evidence, which I accept, that the media would always be interested in news stories involving football clubs and that good media coverage can attract supporters and sponsors and bad media coverage could drive away supporters and sponsors.

The Claimant’s Dismissal

[9]In about the summer of 2013, the Club began considering a restructuring of its operations. That restructuring potentially involved the deletion of the Claimant’s post. He was, therefore, identified as being at risk of redundancy. Meetings were held to discuss the position on 10 July 2013 and again on 22 July 2013. By letter dated 23 July 2013, the Claimant was given written notice of the termination of his employment by reason of redundancy. The Claimant accepted that the Club was entitled to terminate his contract on that ground. The difficulty at that stage concerned the notice period. The Claimant contended that he was entitled to 12 months notice of termination by reason of the oral contract agreed between him and Mr Bates. The Club was contending that that contract had ended after 5 years (that is, in August 2011) and, from that date, the Claimant was employed on the terms of the Club’s standard senior management contract which provided for a notice period of 3 months. The Club now accepts, as appears from its skeleton argument dated 5 February 2015, that the Claimant was entitled under the terms of his contract of employment to 12 months notice of termination (unless the contract was terminated earlier by reason of gross misconduct).[10]Following the giving of notice of termination, the Club discovered that the Claimant had received and forwarded (via his work e-mail account) an e-mail and attachments to a friend, Mr Dennis Wise, who was employed to work for another football team, Newcastle United. The e-mail was received by the Claimant at 9.55 a.m. on 28 March 2008. It was forwarded by him to Mr Wise at 13.02 on that day.[11]The message in the e-mail said simply “Looks like dirty Leeds!!”. Attached to the e–mail was a series of power points setting out a spoof employment offer, involving training and caring for a soccer team in Europe. There then followed a number of photographs. The first set of photographs are entitled “the fans” and are pictures of groups of women or individual women, some with their breasts exposed. The next set of three photographs are entitled “pictures from the club house, the shower”. Two photographs show a group of naked women showering. The second of these depict the genitalia of the women in the photograph. The third is a close-up photograph of a woman’s genitalia. The next set of five photographs follow on from a reference to a massage session. They include pictures of women displaying breasts and genitalia and engaged in simulated sexual contact with each other.[12]The Claimant described the photographs as vulgar and accepted that the images were not innocuous and went beyond being harmless or inoffensive. He accepted that the three photographs of the women in the shower were obscene and were not photographs you would see in, for example, a newspaper. He accepted that they would be likely to offend. He described the five photographs of women in acts suggestive of sexual activity as obscene. I agree. In my judgment, the photographs, taken as a whole, can properly be characterised as obscene and pornographic. The Claimant gave evidence, which I accept, that the imagery seen in the photographs attached to the e-mail that he forwarded in March 2008 was not common in professional football at the time. He also gave evidence that such images were not commonly in circulation at the Club (although the Claimant produced one e-mail, sent in September 2010, by one male employee to a small group of other male employees at the Club with a photograph attached of one woman with her breasts exposed).[13]On 24 July 2013, David Haigh, the then Managing Director, acting on behalf of the Club, wrote to the Claimant informing him that he was required to attend a disciplinary hearing on 29 July 2013 to consider two allegations of gross misconduct. The first was storing pornographic material using computer equipment belonging to the Club and forwarding that material to a person outside the Club (namely Mr Wise) on 28 March 2008. The second allegation related to the forwarding of allegedly confidential information to his personal e-mail account. A request by the Claimant for an adjournment was refused. He did not attend the hearing. By letter dated 30 July 2013, the Claimant was informed that he had been found guilty of both allegations. The letter said:
“I am writing to inform you that I have considered the Allegations and supporting evidence and have decided to dismiss you summarily and without notice with immediate effect on the grounds that I believe you have committed a fundamental breach of your duties to Leeds United and that your actions constitute gross misconduct. Accordingly, today will be your last day of employment with Leeds United. You will be paid up to today’s date in the usual way and will receive pay in lieu of any accrued untaken holiday entitlement that you have as of today’s date. You will receive no further compensation in connection with your employment or its termination.”
[14]In relation to the allegation involving the e-mail, the letter said this:
“The email which you received from David Currie on 28 March 2008 with the message “Looks like dirty Leeds” and then chose to forward on to Dennis Wise later that same day contains obscene pornographic images which are capable of causing great offence to anyone who sees them and, were they to be seen by employees at Leeds United, could give rise to a complaint of sexual harassment for which Leeds United could be liable. Furthermore, by forwarding the email together with the attachment using your Leeds United email address, you risked bringing the name of Leeds United into disrepute. Your actions clearly contravene the Code and which provides that: “(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 or which contravenes laws and conventions on … sexual grounds. Information is understood to include text, images and sound. (o) An employee may not use the e-mail to transmit:- • Words or 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).”
Even were you unaware of your obligations under the code, it should have been obvious to you as a senior member of management at Leeds United in a role of responsibility in relation to young and impressionable players that you should have deleted the email upon receipt and not forwarded it on to anyone inside or outside Leeds United. In the circumstances, I consider that this allegation is proven and that your actions in forwarding the email and attachment constituted: (i) a blatant misuse of the Company’s computer equipment; (ii) a fundamental breach of your duties to Leeds United and Gross misconduct; and (iii) destroyed the relationship of trust and confidence between you and Leeds United.” Your actions clearly contravene the Code and which provides that: • Words or 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).”

Your actions clearly contravene the Code and which provides that:

[15]The Claimant appealed, as he was entitled to, to Mr Paul Hunt, then the acting chief executive officer of the Club. In an e-mail dated 10 August 2013, he set out his version of events. In relation to the e-mail to Mr Wise, he said this:
“I have known Dennis Wise for 33 years, as a schoolboy, neighbour, professional player, captain of the successful cup winning teams at Chelsea (6 trophies), England full international player and latterly as Manager of Leeds United. He had recently left the club to join Newcastle United and, at the time was under pressure from their supporters. This email had been sent to me earlier in the day and, given the pressure Dennis was under at the time, I thought it might bring a smile to his face. So I forwarded it to him. I knew it would not offend Dennis. I did not send it to anyone else. I am not in the habit of forwarding emails of this nature or indeed, of trawling the internet for such material or of storing the same in my P.C. I note that only one such email has been provided by way of evidence against me. I dispute that by forwarding this email to Dennis, I have breached any of my duties to the club (whether fiduciary or otherwise).”
[16]An appeal hearing was held on 13 August 2013. By letter dated 27 August 2013, the acting chief executive stated that he had treated the appeal as a complete re-hearing as the Claimant had not attended the disciplinary hearing. He upheld the appeal in relation to the second allegation, as the material was not confidential. He did not uphold the appeal in relation to the allegation involving the e-mail to Mr Wise. He said this:
“I take on board what you have said about the circumstances in which you forwarded the email to Dennis Wise and your relationship with him. I accept that you did not intend to cause him offence by sending him the email and I accept that Dennis may not have been offended by it. I also accept that you may never have received a copy of the internal and internet email code of practice. Nevertheless, it should have been obvious to you, as a member of the senior management team of the club and someone to whom our youngest players and prospects looked up to as an authority figure, that your actions were wholly unacceptable. You associated your own name and the name of Leeds United Football Club with an obscene email which could (and indeed may well) have been forwarded to others. You risked bringing your own name and the Club’s name into disrepute. In the circumstances, I agree with David that this allegation is proven and that your actions in forwarding the email and attachment constituted: (i) a blatant misuse of the Company’s computer equipment; (ii) a fundamental breach of your duties to Leeds United and gross misconduct; and (iii) destroyed the relationship of trust and confidence between you and Leeds United.”
[17]The acting chief executive officer concluded that Mr Haigh was entitled to dismiss the Claimant summarily in relation to the e-mail to Mr Wise. He therefore upheld the decision to dismiss the Claimant summarily for gross misconduct. Mr Haigh and Mr Hunt are not now employed by the Club and did not give evidence.

The Subsequent Discoveries

[18]It subsequently transpired that the Claimant had, in fact, forwarded the e-mail, together with the photographs attached, to two other persons. It is accepted that he had forgotten that he had done so at the time of the disciplinary hearing and appeal, and at the time that the particulars of claim were issued. The chronology is as follows.[19]At 9.55 a.m. on 28 March 2008, the Claimant received the e-mail with the photographs attached. At 11.02 a.m., he forwarded the e-mail and photographs first to Ms Carol Lamb, a junior employee of the Club. At 13.02 .p.m, the Claimant forwarded the e-mail and attached photographs to Mr Dennis Wise. At 13.13 p.m., the Claimant forwarded the e-mail and attached photographs to a third person, Mr Gus Poyet, of Tottenham Hotspur. On each occasion, the Claimant used his work e-mail address which had the words “leedsunited” in the address. He accepted in evidence that any person would have been able to connect the e-mail with the Club.[20]Ms Lamb was, at the material time in March 2008, a receptionist employed by the Club at the Thorp Arch training ground. She was one of the most junior of the staff of approximately 15 employed at the training ground. She was 33 or 34 years old, that is, approximately ½ the age of the Claimant. Ms Lamb performed work for the Claimant as part of her job although she did not report to him. The Claimant accepted that, as far as Ms Lamb was concerned, he was in a senior management position and was a close friend of the chairman of the Club. He accepted that he was in a position of power and seniority as compared with Ms Lamb. The Claimant accepted that he knew that Ms Lamb needed the job she had as she was a single mother. The e-mail would have been sent to her work computer which was at the reception area at Thorp Arch training ground.[21]The Claimant accepted that he had not sent the e-mail to any other member of staff. He accepted that he had not sent any similar e-mail to Ms Lamb or any other member of staff. He accepted that it was not common practice for senior management to send e-mails of this nature to junior staff.[22]He said that he sent the e-mail to Ms Lamb as she was a particularly keen Leeds United fan and would appreciate the play on words in the e-mail. That, said the Claimant, involved the reference to “dirty Leeds”. The Claimant explained that, ever since the 1970 Chelsea-Leeds FA cup final, Leeds had had a reputation for dirty playing, in the sense of a lot of hard tackling. The reference to dirty Leeds, as he said in evidence, was a play on words, referring to the footballing reputation of Leeds United and also referring to the muddy women having a shower in the photographs. He gave evidence that he thought that Ms Lamb would appreciate the photographs and would, as he said in evidence, “have a giggle”. I do not believe the Claimant’s explanation is the true explanation for him sending the photographs to Ms Lamb. The photographs do more than depict a group of muddy women showering. They involve displays of female genitalia and breasts and scenes of simulated sexual activity between women. It is also difficult to understand why, if forwarding the e-mail and attachments was intended to do no more than share a verbal joke about Leeds, he should choose to send the e-mail to only one employee, a junior female employee. The Claimant accepted that other employees, even though not as keen a fan as Ms Lamb, and less ready to attend away matches, would readily have understood the verbal pun that he says was the reason for sending the e-mail. The explanation given was, frankly, not credible. The true reasons for forwarding the e-mail to Ms Lamb were never established.[23]The Claimant similarly said that he sent the e-mail to his two male friends as they would appreciate the play on the words “dirty Leeds”. Again, I do not accept that that explanation is the true explanation for forwarding the e-mails and attachments to his two friends. The photographs go far beyond a play on the words “dirty Leeds”. It is far more likely, as the Claimant implied in his first statement, that he considered, rightly or wrongly, that Mr Wise (and I infer Mr Poyet) would appreciate being sent such material. The Club’s State of Knowledge as at the date of the Dismissal on 22 July 2013 and Disclosures During the Hearing[24]There was dispute as to what was the state of knowledge of the Claimant’s use of the e-mail and attachments forming the subject matter of these proceedings at the time that they first gave him notice of termination of his contract on 23 July 2013. There was also a dispute as to whether the Club had already taken a decision not to pay the Claimant salary payable during the notice period before notice of termination was given on 23 July 2013 and whether the Club were actively seeking reasons to dismiss staff, including the Claimant, on grounds of misconduct.[25]Shortly before the conclusion of closing submissions, the Claimant’s solicitors indicated that they had received a communication and documents from Mr Haigh, the former managing director of the Club, which might relate to those matters. I adjourned the hearing until 12 p.m. the next day, 11 February 2015, to enable the parties to consider the position. On 11 February 2015, I granted permission to the Claimant to adduce further evidence in the form of approximately 25 pages of documents comprising primarily copies of e-mails. I granted the Defendant permission to adduce a witness statement of Mark Broadly dated 11 February 2015 dealing with the response to a request for disclosure made by the Claimant’s solicitors following the hearing on 10 February 2015. I heard submissions from counsel for both parties on the further evidence. I granted a further short adjournment to enable the Claimant to consider whether or not he wished to consider an application for a further adjournment, in particular, to consider if further applications for disclosure were considered appropriate. It was made clear that if no adjournment was sought, then the case would be determined on the evidence that had been adduced, including that adduced on 11 February 2015. Counsel for the Claimant confirmed that no further adjournment was sought and the Claimant was content for the case to be decided on the basis of the evidence adduced. Counsel for the Defendant also indicated that the Defendant did not wish any further adjournment.[26]On the basis of all the evidence, I find as a fact that a decision was taken on or before the 22 July 2013 not to make any payments of salary to the Claimant during his notice period. Further, the managing Director, Mr Haigh, and, the acting chief executive officer, Mr Hunt, both knew on 22 July 2013 that such a decision had been taken and that that decision involved a breach by the Club of the Claimant’s contract. That follows from, amongst other things, the e-mail dated 22 July 2013 from Mr Haigh to Mr Hunt which says:
“As discussed Hisham has instructed us to terminate all payments of salary and otherwise to the above. This is a breach of contract. Please can you handle.”
[27]Further, I find as a fact that managing officers at the Club had already decided by at least 18 June 2013 that they would start investigations in relation to a number of senior managers at the Club to see if evidence could be discovered to justify dismissing them on grounds of gross misconduct. That appears from, amongst other sources of evidence, e-mails of 18 and 20 June 2013 from an employee of a firm of forensic investigators employed to carry out that investigation. The investigation included the Claimant. Certainly by no later than 20 July 2013, and in my judgment, probably as early as mid to late June 2013, the Club were actively seeking to find evidence which they could use to justify dismissal of the Claimant on the grounds of misconduct. That appears from a memo attached to an e-mail sent to Mr Haigh on 20 July 2013. The memo says:
“I am as agreed performing the same action on [a particular senior manager] as for [the Claimant] in order that we find a reason to terminate him for gross misconduct.”
[28]The Claimant further invites me to infer that managers at the Club, including Mr Haigh, knew of the fact that the Claimant had forwarded the e-mail to Mr Wise before the decision had been taken to give notice of the termination of the Claimant’s contract. In my judgment, the evidence does not support such a finding and, on the evidence before me, I find as a fact that neither Mr Haigh nor any other person involved in the decision to give notice of termination of the Claimant’s contract on 23 July 2013 knew at that time of the 28 March 2008 e-mail from the Claimant to Mr Wise before notice of termination was given on 23 July 2013. I reach that conclusion for the following reasons.[29]First, there is no evidence, either written or oral, which indicates that the relevant personnel were actually aware of the existence of the 28 March 2008 e-mail at the time of the termination of the Claimant’s contract. Mr Barnett for the Claimant invites me to infer from the e-mails that there was some evidence of misconduct available and, possibly, a list of allegations had been prepared (Mr Haigh was certainly instructed to prepare such a list late in the morning on 23 July 2013: see the e-mail of 11.23 of 23 July 2013 from Mr Alrayes). There is no positive evidence that any list had been produced or, more importantly, that if it had, it included any allegation relating to the forwarding of the e-mail on 28 March 2008.[30]Secondly, it is clear that the relevant managers at the Club were actively seeking evidence of gross misconduct at this time. If they had had that evidence on 23 July 2013, the likelihood is that they would have used it then rather than writing on 23 July 2013 to give notice of termination and waiting until 24 July 2013 before sending a letter setting out the disciplinary allegations. The more likely sequence of events, in my judgment, is that the Club had decided to give notice of termination to the Claimant on grounds of redundancy with three months notice; they had decided that they would not pay him any salary in any event; and they were actively looking for reasons to dismiss him on grounds of gross misconduct, and shortly after giving notice of termination, the managers saw the e-mail and wrote the letter dated 24 July 2013 making disciplinary allegations against the Claimant. In my judgment, if the managers at the Club thought that they had had evidence of misconduct, they would have used it to dismiss the Claimant immediately rather than write the letter of 23 July 2013 giving notice of termination and then writing again on 24 July 2013 making the allegations of misconduct.[31]The Claimant also relied on one further aspect of the evidence as leading to the inference that Mr Haigh knew of the 28 March 2008 e-mail from the Claimant to Mr Wise before he sent his letter of 23 July 2013. That was said to arise out of the oral evidence of Ms Greer. In fact, Ms Greer’s evidence was that, so far as she was aware, the decision not to pay salary for any notice period was taken after discovery of the e-mail to Mr Wise. In re-examination, Ms Greer confirmed that she did not know by whom, or on what basis, the decision to take the Claimant’s salary out of the predicted cash flows had been taken. I found Ms Greer to be an honest witness. I accept her evidence. The evidence of Ms Greer does not support any inference that the managers at the Club knew of the Claimant’s e-mail to Mr Wise before they sent the notice of termination on 23 July 2013.[32]In my judgment, on a balance of probabilities, Mr Haigh had not seen the e-mail of 28 March 2008 from the Claimant to Mr Wise when he wrote on 23 July 2013 giving notice of termination of the Claimant’s contract of employment on grounds of redundancy (nor was any one else involved in the decision to terminate the Claimant’s contract aware of that fact). Mr Haigh only saw that e-mail afterwards and he then wrote setting out the disciplinary allegations on 24 July 2013.[33]Following the conclusion of the hearing, a copy of one further e-mail was provided to the Court as that e-mail might have particular relevance to the question of affirmation. I received brief written submissions from both counsel as to the significance of that e-mail. The e-mail is timed at 17.17 on 24 July 2013 (that is, the day after the notice of termination had been sent) and is from the forensic investigators to Mr Haigh. That e-mail states that “following our conversation yesterday on further searches through [the Claimant’s] emails”, the forensic investigators had analysed some 6,000 images attached to the Claimant’s e-mails and conducted targeted keyword searches for potentially offensive language. As a result of that analysis, they had identified one e-mail as containing lewd images and being received by him on 28 March 2008 and forwarded on that day. The e-mail attached the 28 March 2008 e-mail and said that, before Mr Haigh opened the attachment, the investigators cautioned him that it contained lewd images. That e-mail is consistent, in my judgment, with the analysis that the managers did not know of the forwarding of the e-mail on 28 March 2008 to Mr Wise until after they had sent notice of termination on 23 July 2013. Indeed, the e-mail of 24 July 2013, indicates that it was not until 24 July 2013 that Mr Haigh saw the e-mail.[34]Finally, there is no evidence, in my judgment, that any of the managers at the Club knew of the fact that the Claimant had also sent the e-mail and attached photographs to Ms Lamb and Mr Poyet until after the proceedings had started and shortly before the Club applied to amend its defence. There is no documentary evidence to suggest that any manager in the Club knew of the existence of the e-mails to Ms Lamb or Mr Poyet in the period before notice of termination was first given on 23 July 2013 or, indeed, at any stage up to and including the Claimant’s appeal against dismissal. It is inconceivable, in my judgment, that the managers at the Club would not have sought to make use of those e-mails during that period if they were aware of them, given that they were actively seeking to find a reason for dismissing the Claimant and, further, that they did make the sending of the e-mail to Mr Wise a basis of one of the disciplinary allegations against the Claimant.

Ancillary Matters

[35]The Club had a policy entitled ”Internal and Internet E-Mail: Code of Practice”. There were different versions in force. At the material times, the provisions included the following:
“(o) An employee may not use the e-mail to transmit: Words or 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).”
Words or 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).”[36]Paragraph 4 of that policy provided:
“4. DISCIPLINARY PROCEDURES Abusing the electronic mail facility, or failing to abide by the e-mail code of practice may harm the Company’s reputation or compromise its professionalism. Any such actions will be considered serious disciplinary matters and you will therefore be dealt with in accordance with the Company’s disciplinary procedure.”
[37]There is a Club Handbook. That sets out a non-exhaustive guide of the sorts of conduct that may result in disciplinary action. There is a set of examples of “Misconduct”. There is then a set of examples of “Serious Misconduct” where normally a written warning would be given for a first offence. There is finally a set of examples of “Gross Misconduct” where the employee would be dismissed without notice or warnings.[38]I find as a fact that the Claimant was not provided with, and did not see, a copy of the internal and internet e–mail policy or the handbook during his employment with the Club.

The Pleadings

[39]On 10 December 2013 the Claimant issued his claim form, claiming damages for wrongful termination. He claimed unpaid salary, unpaid pension and damages for the loss of other contractual benefits including the use of a mobile phone for personal purposes, and death-in-service benefits for the balance of his notice period (that is, 51 weeks) and a statutory redundancy payment. He also sought damages for the amount of tax that he would be liable for in relation to any damages that he was awarded.[40]On 23 January 2014, the Defendant filed its defence. It contended, amongst other things, that it was an implied term of the Claimant’s contract:
“6.1. that he would not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence which should exist between employer and employee (“the trust and confidence term”).”
[41]The Defendant contended that the forwarding of the e-mail to Mr Wise involved a breach of that implied term. On discovery of the fact that the e-mail had been forwarded to Ms Lamb and Mr Poyet, the Defendant amended the defence on 23 June 2014 to contend that the forwarding of the e-mails to them was also a breach of that implied term. The Defendant contended that they were entitled to dismiss the Claimant without notice on grounds of gross misconduct on 30 July 2013 and no further payments of salary or other benefits were due to the Claimant after that date.[42]The Claimant accepted that he was subject to the implied term of mutual trust and confidence pleaded. He contended, however, that even if the forwarding of the e-mails involved a breach of that contract, it was not a sufficiently serious breach to entitle the Defendant to treat the contract as repudiated and to dismiss him summarily.[43]The Defendant alleged that the Claimant’s contract included other implied terms including a term that he would comply with the Defendant’s policies and expected standards of conduct. The Claimant accepted that that was an implied term of his contract subject to those policies and standards first being brought to his attention.[44]The Defendant also alleged, and the Claimant admitted subject to caveats, that the Claimant’s contract included an obligation that the Claimant “would act in the interests of the Defendant and not act in a manner likely to bring the Defendant into disrepute [and] that he would not abuse the Defendant’s computer or email systems by storing or transmitting images which are obscene, lewd or pornographic”[45]In the event, in submissions, counsel for the Defendant accepted that the defence was based upon the contention that the communication of the e-mails to Ms Lamb, Mr Wise and Mr Poyet amounted to a sufficiently serious breach of the implied term of trust and confidence entitling the Club to treat the contract as repudiated and to bring it to an end without notice. Counsel for the Defendant accepted that if the conduct did not justify termination without notice on the basis of breach of the implied term of mutual trust and confidence, it would not be possible to demonstrate that the conduct was a sufficiently serious breach of any other implied term such as to amount to repudiation.[46]For completeness, the Defendant originally relied upon further implied terms but, by the time of the hearing, ceased to rely upon those matters. They had been said to be implied on the basis that they were set out in the internal and internet e-mail code of practice. The Defendant accepted that the Claimant had not been provided with a copy of that policy prior to his dismissal. They did not at trial seek to rely upon observance of the policy, or its terms, as a contractual term of the Claimant’s contract of employment but indicated that the policy may be relevant, as a matter of context, in setting the standards considered acceptable in terms of the use of an employer’s computer equipment for the dissemination of obscene or pornographic images by e-mail.

The Loss

[47]In terms of the damages claimed by the Claimant, the Defendant accepted that, if there was a wrongful dismissal, and subject to the question of mitigation, the Defendant would be liable for(1) £121,519 being the equivalent to 51 weeks salary net(2) £17,105 being equivalent to 51 weeks’ employer’s pension contributions(3) £696 for payment of the mobile telephone bills for personal expenses for 51 weeks and(4) a figure representing the amount of tax payable on any damages awarded in excess of £30,000.[48]The Defendant denied liability for the death-in service benefit and the statutory redundancy payment, even if there were a wrongful dismissal, but agreed that £3,295 would be the sum needed to purchase an insurance policy providing for payments equivalent to the death-in-service benefits to which the Claimant was entitled under the terms of his contract and the amount of £4,725 would represent the statutory redundancy payment to which the Claimant would have been entitled if he had been dismissed with notice on the grounds of redundancy. The Defendant contended that the Claimant had failed to take reasonable steps to mitigate his loss.

THE ISSUES

[49]Against that background, the issues that arise are, in my judgment, these:(1) did the forwarding of the e-mail and photographs to Ms Lamb, Mr Wise, and Mr Poyet on 28 March 2008 amount to a sufficiently serious breach of the implied duty of mutual trust and confidence so as to amount to a repudiation of the contract entitling the Club to dismiss the Claimant without notice on 30 July 2013?(2) if not, and if the Club were not entitled to terminate the Claimant’s contract without notice, what loss has the Claimant suffered by reason of any wrongful dismissal?

THE FIRST ISSUE

[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: see Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch.D. 339 and Cavenagh v William Evans Ltd. [2013] 1 W.L.R. 238 at paragraph 5. In the present case, the Club relies partly upon conduct they knew about on the date of dismissal, 30 July 2013, and partly upon conduct they discovered after the dismissal.[51]The relevant term here is the implied term of mutual trust and confidence. The content of that obligation is that neither the employer nor the employee will:
“without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”
See, generally, Malikv Bank of Credit and Commerce International S.A. [1998] A.C. 20 at 45E-G

See, generally, Malikv Bank of Credit and Commerce International S.A. [1998] A.C. 20 at 45E-G

[52]The parties in the present case accept that that formed an implied term of the Claimant’s contract of employment. It is a fundamental term of the contract. The essential issue is whether the conduct of the Claimant, viewed objectively, was a breach of that implied term and if so, was it sufficiently serious to amount to a repudiatory breach which entitled the Club to terminate the Claimant’s contract of employment immediately and without notice on 30 July 2013?[53]In general terms, in assessing the seriousness of any breach, it is necessary to consider all the relevant circumstances including the nature of the contract and the relationship it creates, the nature of the contractual term that has been breached, the nature and degree of the breach and the consequences of the breach (see, in a different context, Valilas v Januzaj [2014] EWCA Civ 436 at paras. 31,53 and 60 to 61). In the context of contracts of employment, relevant circumstances include “the nature of the business and the position held by the employee”: see Jupiter General Insurance Co. Ltd. v Shroff [1937] 3 All E.R. 67 per Lord Maugham. The opinion of the Privy Council in that case recognises that immediate dismissal is, as Lord Maugham expressed it, a “strong measure” and there needs to be careful consideration of the evidence to determine whether the conduct is such as to amount to a repudiatory breach entitling the employer to dismiss the employee without notice.[54]In the present case, it is appropriate first to identify the conduct said to amount to a breach of the implied term of mutual trust and confidence. Here, it is the fact that the Claimant used his work e-mail to send a junior female employee an e-mail with an attachment containing a number of obscene and pornographic photographs on the morning of 28 March 2008. Then, two hours later, he used his work e-mail to forward the e-mail and attachments to a male friend employed at another football club. Then, 11 minutes later, he used his work e-mail to forward the e-mail and attachments to a third person, another male friend employed at a different football club.[55]Viewed objectively, in my judgment, that conduct on the facts of this case does amount to a breach of the term of trust and confidence implied in the contract of employment. Such conduct was likely seriously to damage the relationship of confidence and trust between the Club and the Claimant. It was a sufficiently serious breach as to amount to repudiation of the contract by the Claimant. I reach that conclusion for the following reasons.[56]First, the Claimant occupied a very senior management post at the Club. Secondly, there is the nature of the images involved. The images were, viewed objectively and, indeed, by the Claimant’s own admission, pornographic and obscene. The Claimant accepted that the material went beyond images that were harmless and inoffensive and were capable of causing offence. The images were not the sort of images that were common in professional football at the time. They were not the sort of images that were in circulation in the work environment at the Club.[57]Thirdly, the sending of these images to a junior, female employee, by a senior manager with significant influence over her career, might well have caused offence and would have left the Club vulnerable to a claim for harassment under section 4 of the Sex Discrimination Act 1975.[58]Fourthly, there is the nature of the Club’s business and the potential consequences of conduct of this nature. The Club’s reputation is important in terms of securing and retaining sponsors and supporters. The dissemination of the images was readily identified with the Club. They were sent via an e-mail address which had the phrase “leedsunited” in the address. The accompanying text in the e-mail itself referred to dirty Leeds. The media were likely to be interested in stories involving the distribution of such material within the world of professional football. If the fact that a senior manager had sent such images to a junior female member of staff became known, particularly if it led to a claim for harassment, the media might well have been interested in publicising those events. More generally, the sending of pornographic images by a senior manager at the Club to relatively well known persons active in professional football might itself have led to media interest and possibly publication of potentially negative press coverage. That, in turn, might well adversely affect the reputation of the Club and, in turn, might well affect its ability to find or retain sponsors or supporters.[59]For the reasons given above, no reasonable explanation at all has been provided to justify or explain the forwarding of the e-mail. In relation to Ms Lamb, I do not accept that the Claimant’s explanation that he thought that the employee would appreciate a play on the words “dirty Leeds”, or have a giggle at the photographs because she was a keen Leeds supporter is true. No other reason has been advanced to justify the conduct. Indeed, it is difficult to imagine what reason could justify a senior manager using the internal e-mail system to send pornographic images to a much more junior, female employee. In relation to Mr Wise and Mr Poyet, and even assuming that the Claimant considered that some of his football colleagues might wish to receive electronic copies of the images, there is no reasonable explanation for using the Club’s e-mail system for the purpose of sending pornographic images to friends.[60]Viewed objectively, the use of the Club’s e-mail 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 at the Club. The Claimant’s conduct in forwarding those e-mails 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 the Club was entitled to treat that conduct as justifying summary dismissal. Put simply, the conduct amounted to gross misconduct and the Club would were entitled to rely upon that conduct as justifying the summary dismissal of the Claimant.[61]Furthermore, the conduct of the Claimant in forwarding the e-mail to Ms Lamb was, in my judgment, sufficiently serious in itself (irrespective of the fact that it was sent to two other people) to constitute a sufficiently serious breach of the contract of employment as to amount to repudiation. The sending by a senior manager of obscene and pornographic images to a female, junior employee using the Club’s internal e-mail is simply not compatible, viewed objectively, with the role that the Claimant was employed to carry out at the Club. There is no reasonable explanation for that conduct. Put simply, for a senior manager to send these images to a junior female employee in the circumstances of this case amounted to gross misconduct and the Club would be entitled to rely upon that conduct as justifying the summary dismissal of the Claimant.[62]It would be artificial to seek to separate out the sending of the e-mail to Mr Wise and then, 11 minutes later, to Mr Poyet and to assess whether each of those incidents in isolation (and without regard to the sending of the e-mail to Ms Lamb earlier that day) amounted to a repudiatory breach by the Claimant justifying the summary dismissal. Nor is it necessary to do so in the particular circumstances of this case.[63]I turn then to the principal submissions advanced on behalf of the Claimant as to why the conduct was not a breach of the implied term of the contract, or, as a minimum, was not sufficiently serious to amount to a repudiatory breach. I also consider the submissions relating to the affirmation of the contract of employment.[64]First, Mr Barnett submits that the images were not hard-core pornography. It is true that there are gradations of images. There will be cases involving more extreme images or images with additional features which increase their offensive nature. That is not, however, the issue. The issue is did the conduct of the Claimant, in forwarding these particular images to a junior female employee and to two male friends employed in other clubs, amount to a repudiatory breach. The submission that the images were innocuous was abandoned in the light of the Claimant’s own evidence. Viewed objectively, and indeed, on the Claimant’s own admission, these images were obscene and pornographic involving the display of female genitalia and breasts and acts of simulated sexual activity between women. They were not images common to football. They were not images commonly sent to employees at the Club. Viewed objectively, the forwarding of these particular images in the circumstances of the case and using the Club’s e-mail system was a sufficiently serious breach of the implied term of mutual trust and confidence to amount to a repudiatory breach.[65]Secondly, Mr Barnett submitted that the Claimant had not been provided with the Club’s internet policy. That is correct. However, it should have been obvious in March 2008, certainly to a person in a senior management position such as the Claimant, that the Club’s e-mail system should not be used to send obscene and pornographic images. In my judgment, the position here is similar in this regard to that in Henderson v London Borough of Hackney [2011] EWCA Civ. 1518 where a submission was made that receiving and watching even more extreme pornographic images during school time was not gross misconduct because there was no written policy or rule prohibiting such conduct. Pill L.J. observed at paragraph 28 that:
“It did not make the conduct any less grave or gross because it had not been spelt out. Spelling out should not have been required to a person in the applicant’s position”
[66]Thirdly, Mr Barnett submitted that under the Club’s own internet policy such matters were referred to as “serious disciplinary matters” and it was, therefore, more appropriate to regard the conduct as “serious misconduct” not gross misconduct and, under the Club’s own disciplinary rules set out in the Handbook, serious misconduct would not normally result in summary dismissal. The internet policy and the Handbook were never provided to the Claimant and Mr Barnett was not seeking to suggest that there was a breach of the contractual disciplinary process. Rather, he was submitting that, if the conduct would not be gross misconduct if the rules were part of a contract of employment, it would not be appropriate to characterise such conduct as gross misconduct more generally.[67]In my judgment, that argument proceeds on a mistaken understanding of paragraph 4 of the Club’s internet policy. That provides that abusing the electronic mail facility or failing to comply with the code of practice are “serious disciplinary matters” and the employee will “be dealt with in accordance with the Company’s disciplinary policy”. The internet policy is simply saying that abuse is a serious disciplinary issue and then directs that it be dealt with in accordance with the disciplinary rules. Whether the conduct amounts to misconduct, serious misconduct, or gross misconduct will depend upon the application of the disciplinary rules. The fact that the internet policy says abuses are “serious disciplinary matters” is not to be equated with, or seen as an attempt to define the scope of, “serious misconduct” under the rules. Ultimately, the question will be whether the conduct constitutes gross misconduct, that is, whether it constitutes a repudiatory breach of contact entitling the Club to terminate the contract without notice.[68]Fourthly, Mr Barnett submitted that it was appropriate to consider the events with the benefit of hindsight and that, in fact, the Claimant had worked at the Club for almost a further 5 and ½ years after he forwarded the e-mails. He submitted that that meant that the discovery of the e-mails would not have been likely to destroy the relationship of trust and confidence and the relationship was sufficiently robust to survive. In my judgment, the question is whether, viewed objectively, the conduct complained of was such as would have entitled the Club to dismiss the Claimant when they discovered it (see Boston Deep Sea Fishing and Ice Company v Ansell) (1888) 39 Ch.D. 339 at page 358). For the reasons given, the conduct would have entitled the Club to dismiss the Claimant without notice.[69]Fifthly, Mr Barnett submits that there was no realistic prospect of any of the children (or any other young footballer) seeing the image on Ms Lamb’s computer. The children under 17 came to the Thorp Arch training ground after Ms Lamb finished work. Those aged 17 to 21 in the first team came in the day time but Ms Lamb’s computer was on her desk behind a partition. I accept that it is unlikely that any child or young footballer would be likely to see the images on that computer. The existence of such a risk is not, however, the basis for my finding that the conduct amounted to gross misconduct. For completeness, I would, however, note that sending obscene and pornographic images to a female employee (and male friends) via the Club’s e-mail system is not compatible with the duties of the Claimant and his role of providing advice and guidance, and acting as an example, to those young persons and children whose football career he was nurturing. That is not the reason for my conclusion that the conduct amounted to gross misconduct although it is a factor that reinforces that conclusion.[70]Sixthly, Mr Barnett submitted that if the Club knew that the Claimant had forwarded the e-mails to Mr Wise, Ms Lamb and Mr Poyet prior to deciding to dismiss then the letter of 23 July 2013 affirmed the existence of the contract. I accept that if those who took the decision did know those facts prior to the decision to terminate the contract, then the letter of 23 July 2013 would amount to an affirmation of the contract of employment and that the Club could not thereafter rely on those facts as justifying dismissal.[71]I have set out above my findings of fact that neither Mr Haigh, nor any one else involved with the decision to terminate the Claimant’s contract of employment on 23 July 2013, knew prior to that decision, of the e-mail to Mr Wise. For that reason, the question of affirmation does not arise. Even if (contrary to the findings that I have made) Mr Haigh or some other person involved in the dismissal did know of the e-mail to Mr Wise prior to the decision to terminate the contract, it is clear in my judgment, that they did not know then that the e-mail had also been forwarded to Ms Lamb. For the reasons given above, the forwarding of the e-mail and attached images to Ms Lamb would, of itself, be a sufficiently serious breach of the contract of employment to amount to repudiation of the contract by the Claimant. That was not known about by those involved in the decision to give notice of termination on 23 July 2013, and there is no question, in my judgment, of the contract being affirmed subsequently. Consequently, irrespective of the position in relation to the forwarding of the e-mail to Mr Wise, there was no affirmation of the contract after the discovery of the forwarding of the e-mail and attached images to Ms Lamb and that conduct, alone, would have entitled the Club to dismiss the Claimant without notice.[72]Mr Barnett also made two submissions on the law as to why the Club were not entitled to refuse to compensate the Claimant for salary payable during the notice period. First, he submitted that that salary was an accrued debt, that is a debt that had accrued prior to the dismissal on 30 July 2013, and remained owing notwithstanding that dismissal. This was put in two ways. It was submitted that the letter of 23 July 2013 amounted to an acceptance that the Claimant was entitled to 3 months notice and that, therefore, at least money equivalent to 3 months salary became an accrued debt. Mr Barnett relied on the decision of the Court of Appeal in Cavenagh v William Evans Ltd. [2013] 1 W.L.R. 238. Alternatively, it was submitted that if the contract had been affirmed because the Club knew of the e-mail from the Claimant to Mr Wise before the notice of termination was given, then the salary accrued from month to month and was an accrued debt. Mr Barnett submitted that in those circumstances, the principle identified in the Boston Deep Sea Fishing case did not apply.[73]First, the letter of 23 July 2013 did not convert money payable under the contract of employment into an accrued debt. It gave notice that the contract would terminate on the expiry of the notice period. During the notice period, the contract would remain in existence and salary and other benefits would be payable under the contract. If, however, the employer terminates the contract without notice during that period, no salary or benefits would be payable after the summary dismissal and immediate termination of the contract.[74]That was the position in Boston Deep Sea Fishing itself. The relevant facts in the case are these. Mr Ansell was appointed on a contract which, from 1 January 1886, entitled him to a salary of £800 a year, payable quarterly. He was dismissed on 2 October 1886. He brought a counter-claim for damages for wrongful dismissal for the quarter up to 1 October 1886.The Court of Appeal held that the employer was entitled to rely upon facts not known at the time to justify the dismissal. They, therefore, considered that damages for wrongful dismissal would not be payable in respect of the period after 2 October 1886. They further held that, on a proper construction of the contract, the salary was an annual salary and no entitlement to any salary accrued prior to the end of the year. Consequently, the claimant was not entitled to claim the £200 for the quarter prior to his dismissal on 2 October 1886. The general position is put by Bowen L.J. in the following terms at page 355:
“As regards his current salary, it is clear and established beyond all doubt by authorities which we should not be justified in overruling, even if we desired to do so, that the servant who is dismissed for wrongful behaviour cannot recover his current salary, that is to say, he cannot recover salary which is not due and payable at the time of his dismissal, but which is only to accrue due and become payable at some later date …..”
[75]That dictum dealt with the salary in the period after dismissal. The only question remaining was whether the salary in the quarter prior to dismissal on 2 October 1886 was salary which had already accrued. The Court held that “on a true view of the facts no portion of the salary in this case had accrued before the dismissal …he was to be paid an annual salary” (see per Bowen L.J. at pages 365 to 366). Consequently, salary referable to a period prior to dismissal, but not yet accrued, was not recoverable.[76]That general position is not altered by the decision of the Court of Appeal in Cavenagh v Williams Evans Ltd. [2013] 1 W.L.R. 238. There, the employer terminated the contract by exercising an express contractual right to terminate the appointment without notice on payment of salary and the value of other benefits in lieu of notice (see paragraphs 12 and 14 of the judgment). The exercise of that specific contractual right did give rise to an accrued debt and the Court of Appeal held that the principle in Boston Deep Sea Fishing did not provide the employer with a defence to a claim for payment of an accrued debt. The termination of the contract had already triggered the liability to pay in lieu of notice. That position is to be contrasted with a position where there had been a summary dismissal of the employee and, subsequently, the employer acquired knowledge which would have entitled the employer to terminate the contract without notice. In the latter circumstances, the principle in Boston Deep Sea Fishing did apply and did entitle the employer to rely on that misconduct, discovered subsequently, to justify the dismissal and resist the claim for damages for wrongful dismissal. See paragraphs 37 to 39 and 50 and 55 of the decision in Cavenagh.[77]The position in the present case is that the Claimant is bringing a claim for damages alleging wrongful termination. He is contending that the contract could only terminate at the end of the notice period and that he should be entitled to the salary and the value of the contractual benefits that would have been payable during the notice period. He is not seeking to enforce any accrued debt. The Club, however, dismissed him summarily during the notice period. Provided that that summary dismissal was justified, the Claimant is not entitled to claim the balance of the salary and other contractual benefits that would have been payable during the notice period if the contract had not been terminated summarily. In justifying the dismissal, the Club is entitled to rely upon the acts it knew about on 30 July 2013 and the acts it learnt about subsequently. Therefore, the position in Boston Deep Sea Fishing is applicable to the claim in the present case. The fact that the Club said in its letter of 23 July 2013 that the Claimant was entitled to 3 months notice does not have the consequence that the salary payable during the period between the 23 July 2013 and the end of that notice became an accrued debt. The letter simply gives notice of termination and provides that the contract would expire at the end of the notice period said (erroneously) to be 3 months. The letter does not convert the salary that would be payable under the contract during the notice period into an accrued debt. The position is, therefore, different from that in Cavenagh where the employer did exercise a contractual right so that the contract terminated immediately and the salary and contractual benefits otherwise owing was converted into an accrued debt. In the event, the contract of employment was terminated on 30 July 2013 and no salary was payable after that date.[78]Secondly, in relation to the argument on affirmation, I have found as a fact that the Club did not know about the forwarding of the e-mail to Mr Wise prior to termination and the Club did not affirm the contract. But, even if that were wrong, the Club subsequently learned that the Claimant had forwarded the e-mail to Ms Lamb on 28 March 2008. That conduct, of itself, amounted to a repudiatory breach and the Club were entitled to rely on that as justifying the dismissal on 30 July 2013 and would not therefore be liable to pay salary payable in respect of the remainder of the notice period. That salary had not become an accrued debt, any more than the salary in Boston Deep Sea Fishing had become an accrued debt. Just as the employer in that case could rely on knowledge acquired eighteen months after the dismissal to resist a claim for damages for wrongful dismissal, so here would the Club have been entitled in any event to rely upon the gross misconduct, discovered in 2014, as justifying the summary dismissal on 30 July 2013.[79]Mr Barnett next seeks to contend that the Club decided before 22 July 2013 not to pay the Claimant any salary for the notice period to which he was entitled. The Club also refused to accept that the actual notice period was 12 months rather than three months right up to the point when it lodged its skeleton argument in February 2015. The Club was also actively seeking to find evidence to justify dismissal without notice. Mr Barnett describes that conduct as unfair or as involving bad faith and submits that the rule in Boston Deep Sea Fishing should not apply in such circumstances and the court should decline to allow the Club to justify termination of the Claimant’s contract without notice by reference to the subsequently acquired knowledge of the Claimant’s repudiatory breach.[80]The proper contractual analysis is this. In relation to contracts of employment, if an employer gives notice to terminate, the contract will, in normal circumstances, end at the expiry of that notice period. The employer would be liable for salary payable during that period of notice and until the end of the contract. If, however, the employer dismisses the employee summarily during the notice period, that dismissal will bring the contract to an end immediately and the employer will not, after that dismissal, be liable for any further salary. Furthermore, if the employer subsequently discovers that, prior to the summary dismissal, the employee had engaged in conduct amounting to a repudiatory breach, the employer is entitled to rely upon that conduct as justifying the summary dismissal and as enabling it to resist a claim for damages for wrongful dismissal, that is for the salary that would otherwise have become payable during the notice period: see Boston Deep Sea Fishing 1888 (39) Ch D. 339 at page 364 and Cavenagh v William Evans Ltd. [2013] 1 W.L.R. 238 at paragraph 5.[81]Here, on 23 July 2013, the Club gave notice to terminate the Claimant’s contract of employment. Unless circumstances changed, that contract would have expired at the end of the 12 month notice period, that is on 22 July 2014. The Claimant would be liable to be paid salary due during that period. However, on 30 July 2013, the Club dismissed the Claimant summarily and brought the contract to an end on that date. Provided that the Club can demonstrate that the Claimant had engaged in conduct amounting to a repudiatory breach prior to the dismissal, the Club would be entitled to justify dismissal without having to give notice. Furthermore, the Club can rely upon conduct discovered after the dismissal to justify the dismissal.[82]The fact that the Club committed an anticipatory breach of contract on 22 July 2013 when it decided not to pay any further salary under the contract or committed breaches of the contract by failing to pay the salary due before the contract had been brought to an end on 30 July 2013 does not prevent the Club dismissing the Claimant summarily when it discovered the misconduct (nor does it prevent the Club from relying on misconduct discovered after the dismissal in order to justify it).[83]Similarly if, viewed objectively, the conduct does amount to a repudiatory breach by the employee, then the employer is entitled to rely upon that repudiatory breach as justifying the dismissal irrespective of the employer’s motives or reasons for wishing to do so. Consequently, the fact that the Club were motivated by consideration of their own financial and commercial interests, and wished to find a reason, and indeed were actively looking for evidence, to justify the Claimant’s dismissal, does not prevent the Club from relying upon conduct amounting to a repudiatory breach as justifying the dismissal on 30 July 2013. Nor does the fact that the Club were unprepared until recently to accept that the notice period was 12 months, rather than three, prevent them from relying upon conduct amounting to a repudiatory breach as justifying termination of the contract without notice.[84]Consequently, where, as here, there is a repudiatory breach of the contract of employment by the employee, and there has been no affirmation or waiver of the repudiatory breach, the employer is not prevented from relying on that breach as justifying summary dismissal because it had itself decided to breach its contractual obligations or was looking for a reason to justify dismissal or was motivated by its own financial interests. There is no basis for concluding that it is “unfair or “unjust” to allow the Defendant to rely upon the Claimant’s anticipatory conduct to resist a claim for wrongful dismissal in such circumstances.[85]That approach is also consistent with Glencore Rotterdam BV v Lebanese Organisation for International Commerce [1997] 4 All E.R. 514. There the Court of Appeal re-affirmed the basic rule in the law of contract that a person who terminates a contract, and subsequently discovers conduct which would have entitled him to terminate the contract, is entitled to rely upon that later conduct to resist a claim for damages for breach. That rule was subject to certain specified exceptions such as, for example, estoppel or waiver, where the facts “justify a finding that there was an unequivocal representation made by one party, by conduct or otherwise, which was acted upon by the other” but “Without such a representation, no such estoppel or waiver can arise, and there is no general rule that what the court or tribunal may perceive as ‘unfairness or injustice’ has the same effect” see Glencore [1997] 4 All E.R. at pages 530j to 531c.[86]I recognise that the Court of Appeal in Glencore was not dealing with a situation where the contracting party had indicated its intention to breach the contract. However, the authority is consistent with the view that such matters should be determined in accordance with the contractual position subject to certain specific exceptions.[87]For completeness, I note that a number of other points were referred to by counsel in their skeleton arguments, oral submissions and closing submissions. I have sought in this judgment to deal with what I consider to be the principal points raised, and the principal evidence relating to those matters. The Claimant and the Club can be assured however, that I have carefully considered all the other points and all the evidence given and all the documents relied upon.

THE SECOND ISSUE – THE AMOUNT OF DAMAGES

[88]In the circumstances, the Club is entitled to rely upon the Claimant’s conduct on 28 March 2008 as a repudiatory breach which justified the termination without notice on 30 July 2013. The Club is therefore not liable to pay damages for wrongful termination comprising the salary and other contractual benefits that would otherwise have been payable during the notice period.[89]In those circumstances, it is not necessary to deal with quantum in detail. For completeness, I note that the figures in dispute are agreed although liability on certain issues is disputed. Mr Campbell, for the Defendant, contended that even if there had been wrongful dismissal, damages related to death in service benefits would be payable only if either the Claimant had purchased alternative insurance cover or if he had died before the contract had terminated at the end of the notice period. The Claimant had not purchased alternative cover and, fortunately, had not died. Consequently, he submitted, the Claimant had not suffered any loss in respect of those matters. He relied in that regard upon the decision Knapton v ECC Card Clothing Ltd [2006] ICR 1084, and submitted that the decision in Fox v British Airways plc [2013] ICR 1257, properly analysed, is consistent with that decision. In relation to the redundancy payment, Mr Campbell submitted that damages for wrongful dismissal are payable only for losses arising out of obligations arising under the contract relying on Lavarack v Woods of Colchester Ltd. [1967] Q.B. 278. He submitted that a redundancy payment is a statutory right, not a right arising out of the contract, and is enforceable via a claim in an employment tribunal not by means of a claim for wrongful dismissal at common law. There is considerable force in Mr Campbell’s submissions but it is not necessary for me to reach a decision on those matters of law in the present case.[90]In relation to the question of mitigation, I set out my conclusions briefly. The burden is on the Defendant to show that the Claimant has failed to take reasonable steps to mitigate the loss so that he is not able to recover damages for loss which he could have avoided. I accept the Claimant’s evidence that, in his line of work, recruitment is done by word of mouth rather than the preparation and circulation of written job proposals or curriculum vitae. I accept that the Claimant did take reasonable steps during the period after 23 July 2013 to find alternative employment but was unable to do so. When he was able to find employment that was not until September 2014 and was at a much lower salary. I do not accept the Club’s submission that, in effect, the Claimant simply did little or nothing between termination in July 2013 and September 2014, choosing instead to bring a claim for wrongful dismissal. I note that the Club produced no evidence of employment opportunities that were available or were taken up by others during the period from 23 July 2013 to the 22 July 2014. If the Claimant had been wrongfully dismissed, I would not have restricted his damages on the basis that he had failed to take reasonable steps to mitigate his loss.

CONCLUSION

[91]The conduct of the Claimant on 28 March 2008 in sending obscene and pornographic e-mails via the Club’s e-mail system to a junior, female employee and two male friends at other clubs was a sufficiently serious breach of the duty of implied trust and confidence as to amount to a repudiation of the contract. The Club was entitled to rely upon that conduct as justifying the summary dismissal of the Claimant on 30 July 2013. The claim is therefore dismissed.

Cited in 40 later judgments

and 31 more of the most senior