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Red card for repudiatory breach of trust and confidence!

BY Paul Deans
Employment Law & HR
BG Purple

Can a referee sound the whistle for something which happened over five years ago but has only just come to light? Perhaps not for football, but it is possible in the arena of employment law. 

In the recent case of Williams v Leeds Football Club, a senior employee had been dismissed by reason of redundancy but was refused the outstanding balance of his notice pay (a meagre £200,000!) when it was discovered that he had committed an act of gross misconduct five years earlier. The act in question involved forwarding a pornographic email described as “dirty Leeds” to a junior female colleague. 

Mr Williams raised a wrongful dismissal and notice pay claim which reached the High Court. The judge held that there was insufficient evidence to show that the Football Club had known about Mr Williams’ actions before they placed him on notice for redundancy, therefore there was no acquiescence to his behaviour. In addition, as Mr Williams was in such a position of seniority it was held that the misconduct not only constituted sexual harassment, it was also sufficient to amount to a breach of trust and confidence which was serious enough to be repudiatory in nature. On that basis the Club had the right to dismiss him without paying notice. 

What is key here is that the employer could show that they were unaware of the misconduct until this point. If the employer had known about the behaviour 5 years ago and nothing was done about it until now, it is highly likely the court would have held that the employer had acquiesced to the breach of contract and had consequently lost their right to act upon it. 

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