Acting to stop harm: the FCA and Appointed Representatives
This was a High Court, breach of contract (wrongful dismissal) claim, rather than a statutory employment tribunal claim (for example unfair dismissal) where different legal principles apply. In many senior executive termination disputes, the critical financial issues between the parties turn on the question of whether as a matter of contract law the employer was entitled to dismiss the employee without notice for gross misconduct or other repudiatory breach of contract or whether the executive was entitled to notice of termination.
The Claimant was employed in a senior management post as Technical Director of Leeds United (“the Club”). The terms and conditions of his employment were never documented but at the outset he negotiated them with the Club’s then chairman. They agreed a gross annual remuneration package worth in the region of £230,000 and a 12 month notice period. Seven years later, as part of broader personnel changes connected with a change of ownership at Leeds, the Club decided to carry out a senior management restructuring. Mr Williams was given three months’ notice of redundancy on 23 July 2013 (the employer argued that the original verbal contract terms no longer applied, and that instead in accordance with their standard senior management terms and conditions, the applicable notice period was three months).
One day later, the Club wrote again to the Claimant informing him that he was required to attend a disciplinary hearing. He was accused of gross misconduct. The key allegation for which he was dismissed without notice and on which his claim ultimately turned concerned an email attaching pictures set in the showers of a football club. The Claimant’s counsel contended they were not “hard-core pornography” but the Court found they could be characterised as obscene and pornographic. The subject line of the email read “Looks like dirty Leeds!!” Fans of English football will immediately recognise this was a play on words, Leeds having been labelled “dirty Leeds” by opposing fans since their glory days in the late 1960s and early 1970s. The Claimant was alleged to have forwarded this email from his work email account some five and a half years earlier to a friend in football working at another club.
The Court dismissed the Claimant’s wrongful dismissal claim for damages. It did so notwithstanding the following:
Cases like this turn are highly fact sensitive. Here, a combination of factors undermined the Claimant’s case (notably the sending of the email to a junior female employee, the seniority of his position, and the potential for adverse media interest and concern on the part of the Club’s commercial sponsors had the matter come to the attention of the press at the time). It is also worth remembering that there remains considerable concern about the culture of professional football: see for example this recent report by the BBC on sexist chanting at games, which mentions a number of high profile cases of sexism in football in recent years. Women in Football, supported by Everyday Sexism, have launched a campaign aimed at tackling sexism in the game and this and other campaigns have been trending on social media.
In the circumstances, the result in the Williams case was therefore unsurprising. Employers should not conclude from it that the sort of tactics deployed in the restructuring process at issue will usually result in no legal liability or judicial criticism, as happened in this case. Senior executives should take note that just one act of gross misconduct, only discovered years later, can have serious career consequences.
Andreas White’s areas of specialism include employment litigation, senior executive contracts and severance arrangements, employee competition (confidentiality, restrictive covenants, garden leave and team moves), boardroom and partnership issues, redundancies and restructurings, bonuses, internal investigations, discrimination claims, whistleblowing, TUPE and business transfers.
With a keen interest in the overlap between employment law and financial services regulation, he advises clients from the financial sector on remuneration arrangements and sensitive issues relating to whistleblowing, regulatory investigations and criminal proceedings. Andreas is equally experienced in acting for employers and senior executives, allowing him to understand the issues and tactics on both sides of the table.
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