Not many people would argue that sending obscene and pornographic images from a work email address to someone outside of work, or to a female colleague, was not gross misconduct. However, what if the email was sent a long time ago, say, 5 years? This was one of the issues considered by the High Court in Williams v Leeds United Football Club.

Mr Williams was employed as Technical Director at Leeds United Football Club in 2006. Among his duties were identifying and nurturing young talent. In July 2013, the Club went through a redundancy process and Mr Williams’s employment was terminated, on notice, on the grounds of redundancy on 23^rd July 2013. However, the following day the Club – which had been looking for a reason not to pay him his substantial notice pay – became aware that in 2008 Mr Williams had sent an email from his work email address to Dennis Wise, who was at that time working at Newcastle United. Attached to this email were a number of offensive and obscene pictures of a pornographic nature. The Club went on to dismiss Mr Williams without notice on the grounds of gross misconduct on 30^th July 2013. Following his dismissal, it was discovered that Mr Williams’ had also sent the email to a female employee who was much younger than him on the same day. Mr Williams pursued a claim for payment of his notice, an amount in the region of £200,000.

The Court decided that the Club were fully entitled to dismiss Mr Williams without notice. The issues considered by the Court included:

• That while the incident occurred a long time before the dismissal, the fact that Club were not aware of it until 24^th July 2013 and had acted upon it immediately showed that they had not treated the conduct as acceptable. It was important in this case that the Club did not know about the email until after the redundancy dismissal – had they known before, they would have been deemed to have accepted the conduct of Mr Williams.
• Mr Williams argued that since he had not been issued with a copy of the Club’s internet policy, he did not know that his conduct could have amounted to gross misconduct. The Court decided that in light of his senior position he should have known the seriousness of his actions, that they could attract seriously adverse publicity and expose the Club to a potential sexual harassment claim.
• That the Club was entitled, because this was an action for breach of contract, to rely upon evidence subsequently discovered after the dismissal, namely the email sent to Mr Williams’s female colleague, to go towards justifying the dismissal. (That wouldn’t be true in an unfair dismissal claim though it might lead to a reduction in compensation on ‘just and equitable’ grounds).

This case illustrates the importance of dealing with misconduct issues as soon as you become aware of them and ensuring that your actions do not inadvertently accept that conduct. In addition, while it was not an issue in this case in the end, it is advisable that policies are issued to employees so that they know what is expected of them.