Williams v Leeds United Football Club
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWHC 376 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ/14/1059 |
| Date | 19 February 2015 |
[2015] EWHC 376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: TLQ/14/1059
Mr Daniel Barnett (instructed by Lawrence Stephens) for the Claimant
Mr Fraser Campbell (instructed by Brandsmiths) for the Defendant
Hearing dates: 9 th, 10 th & 11 th February 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
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.
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.
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.
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
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.
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.
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.
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
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).
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.
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.
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).
On 24 July 2013, David...
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