Williams v Leeds United Football Club

An employee’s conduct amounts to a repudiatory breach where, viewed objectively, it is likely seriously to damage the relationship of trust and confidence and is sufficiently serious in the circumstances of the employment. Relevant factors include the employee’s seniority, the nature of the conduct, the employment relationship, the employer’s business and the likely consequences. An employer may rely on repudiatory conduct discovered after summary dismissal to resist a claim for wrongful dismissal, provided the breach has not been affirmed or waived. The employer’s own contractual breach, financial motive or search for grounds to dismiss does not prevent reliance on the employee’s prior repudiatory breach. Salary payable during a notice period is not an accrued debt merely because notice has been given.

The claimant, a senior manager employed by a football club, received and forwarded obscene and pornographic images through the club’s work email system. He sent them to a junior female employee and to two male friends employed by other football clubs. After giving notice of termination by reason of redundancy, the club summarily dismissed him for gross misconduct. It later discovered two of the email transmissions.

The claimant claimed salary and contractual benefits for the balance of the notice period, arguing that the conduct was insufficiently serious, that the contract had been affirmed, and that the salary had become an accrued debt. The central issues were whether the conduct was repudiatory and whether the club could rely on subsequently discovered conduct.

1. Claim dismissed. The claimant’s conduct in sending obscene and pornographic images through the club’s email system to a junior female employee and two male friends was a sufficiently serious breach of the implied term of mutual trust and confidence to amount to repudiation and gross misconduct.
2. The assessment was objective and required consideration of all relevant circumstances. These included the claimant’s very senior management position, the obscene and pornographic nature of the images, the risk of harassment liability, the club’s business and reputation, the possible effect on sponsors and supporters, and the absence of any reasonable explanation. Sending the images to the junior employee was independently sufficient.
3. The absence of a written email policy did not make the conduct less grave. It should have been obvious to a senior manager that the club’s email system was not to be used for sending such material. The policy’s description of abuse as a serious disciplinary matter did not define the separate question whether the conduct was gross misconduct amounting to repudiation.
4. Under Boston Deep Sea Fishing and Ice Company v Ansell (1888) 39 Ch.D. 339, as applied and distinguished from Cavenagh v William Evans Ltd. [2013] 1 W.L.R. 238, the club could rely on conduct discovered after dismissal to justify the dismissal and resist the claim for future notice-period damages. Giving notice did not make the future salary an accrued debt. The position differed from an express contractual payment in lieu of notice, which could create an accrued debt.
5. The club’s prior decision not to pay salary, its anticipatory breach, financial motives and search for grounds to dismiss did not prevent reliance on the claimant’s repudiatory breach. The relevant exceptions were affirmation or waiver. On the facts there had been no affirmation, and the later-discovered transmission to the junior employee independently justified dismissal.