When Leeds Football Club restructured in July 2013, they wanted to make Mr Williams redundant. However, they didn’t want to pay him the 1 year notice they had promised him. So they instructed forensic experts to find some ‘dirt’ on him.
This they found, dating back to 2008, some 6 years previously, when Mr Williams had received and forwarded an email containing material that was described as ‘capable of causing offence’.
Mr Williams was dismissed for gross misconduct, meaning that he was not entitled to any notice money. This happened before he was formally made redundant.
The question facing the High Court was whether Leeds Football Club could use evidence of an email (1) that was so historical and (2) that was discovered as part of a ‘fishing expedition’ specifically to get the club out of their notice obligations.
Yes they could, on both counts, said the High Court, in Williams -v- Leeds Football Club.
The High Court concluded that the sending of the email amounted to a fundamental breach of contract because it breached the implied contractual obligation of trust and confidence. It was not relevant that Mr Williams was not aware of the internet policy when he sent it, because someone of his seniority should have known the email system should not have been used in that way. Nor were the reasons behind its discovery or the delay in time relevant.
Because the club had not already issued its redundancy notice, they were entitled to accept Mr Williams’ breach and treat the contract as at an end.
Interestingly, the High Court held that if they had issued the redundancy notice in the knowledge of the offence, they would have been treated as affirming the contract, and would not have been able to get out of the notice payment.
This case will be an encouragement to employers to embark on forensic ‘fishing expeditions’ if they want to get around long notice periods when restructuring.
If an employee is not already leaving, however, there remains a question as to whether such a ‘fishing expedition’ would itself amount to a breach of trust and confidence on the part of the employer.