Own goal for Sunderland AFC’s marketing director: a warning against “banking” company documents for future reference

26 January 2016

Ever been tempted to surreptitiously e-mail yourself a couple of documents from work, just in case? Maybe you want them as evidence of your past experience when moving roles; or maybe you think you will need to use them against your employer at some point in the future? Well don’t! And remember this case next time you are tempted. 

Michael Farnan was marketing director at Sunderland Association Football Club (SAFC), from August 2011 until June 2013, when he was unceremoniously “given the boot”. Our cautionary tale begins in March 2013, with SAFC in the relegation zone, and Mr Farnan conducting crucial negotiations with Bidvest for shirt sponsorship. In the same month, the club’s CEO, Ms Byrne, made the controversial decision to appoint Mr Paulo Di Canio as the new manager of SAFC; an appointment which provoked strong reactions from all sides. Importantly, Bidvest made it clear to Mr Farnan that they were very unhappy with this decision, as Mr Di Canio had in the past expressed very strong right wing views, with which they had no wish to be connected. With tensions running understandably high, when Mr Farnan contacted Ms Byrne to update her on Bidvest’s concerns, and to make suggestions regarding the press statement to be issued by the club, a “curt” exchange of e-mails ensued.

Mr Farnan, who had for some time been feeling ostracized by Ms Byrne, saw this as the final straw, and began preparing for what he was convinced was his impending exit. Within hours of the fatal exchange of e-mails with Ms Byrne, Mr Farnan had already breached the confidentiality provisions in his contract by e-mailing two useful contacts with a view to finding himself a new position. This in itself was not gross misconduct. However, attached to the e-mails was a confidential presentation prepared by Mr Farnan whilst at SAFC. In the weeks that followed, Mr Farnan began sending home, via his wife’s e-mail address, a number of SAFC documents and important e-mails. His concern was that he would at some point have to challenge SAFC in relation to his bonus and his job. One cannot fail to see the irony in the fact that, in doing so, he ultimately lost both.

For reasons seemingly unknown, Ms Byrne had become concerned that Mr Farnan had been sending e-mails from his work account to his wife, and so she took it upon herself to check through his e-mails. Less than 2 weeks later, and on the day after Wigan lost to Arsenal, saving Sunderland from relegation, Mr Farnan was suspended for gross misconduct and escorted from the premises. 28 allegations of misconduct, and supporting documentation, were delivered to Mr Farnan’s home for a disciplinary hearing in three days’ time. An adjournment of the hearing was refused, and Mr Farnan was unable to attend the hearing, having had insufficient time to prepare. Mr Farnan’s employment with SAFC was terminated, and he brought a wrongful dismissal claim.

At the hearing, the judge accepted that it was not unreasonable for Mr Farnan to send e-mails to his wife for purely administrative reasons (he spent several days a week working from home and apparently required her assistance with the printer). What was in breach of his service agreement however, was the “stockpiling” of SAFC documents and e-mails, including board minutes, on his home computer for his own future personal reference. Mr Farnan’s service agreement specifically prohibited the use of confidential information for non-business purposes, and the courts have confirmed that the possibility of future litigation does not justify the copying or retention of confidential documents by employees. This was a clear breach of contract, regardless of the motive.
As for the job-seeking e-mails to Mr Farnan’s contacts, Mr Farnan admitted that these emails had been sent for his own personal purposes, suspecting as he did that he was headed for the bench. The presentation attached to the emails was not something which was in the public domain, and fell squarely within the confidential information which Mr Farnan was prohibited from disclosing. 

For these and other reasons, including an unfortunate “off the record” conversation with a journalist which was subsequently published by Bloomberg, Mr Farnan was held to have committed serious and repeated breaches of his service agreement for disclosures of confidential information, and SAFC were entitled to dismiss him without notice.

Clearly this should serve as a strict reminder to employees: simple as it may be to send a couple of documents to your personal email address “just in case”, do not forget the equally relative ease with which your employer can retrieve such e-mails. (See our recent blog here for more on this subject) In addition, employers should be reminded of the importance of the confidentiality clause. Clearly the provisions in Mr Farnan’s contract proved more than worth the paper they were written on, and such clauses should always be considered.

In the interests of completeness however, I should also add that Mrs Justice Whipple made a point in her judgement of accepting Mr Farnan’s complaint that the case against him had been “trumped up” by SAFC. Of the 23 allegations which were ultimately heard, only a handful were sufficiently serious, and many were trivial or insignificant. Mrs Justice Whipple found it to be “a pity” that so many allegations were pursued when so few could be established as sufficiently serious; and “a pity”, especially given the number of allegations involved, that Mr Farnan was not permitted sufficient time to prepare for his disciplinary or appeal hearings. The hint to employers would therefore seem to be: when your employee scores an own goal, don’t stick the boot in…

Further information

For further information, please contact Rebecca Farrington, or visit our employment law web pages

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