This case had all the makings of a good scandal: pornography, dishonesty and a lot of money. It could only end well for one party and as it turned out that was the employer, Leeds FC, though it did not emerge totally unscathed.

Mr Williams was the Technical Director at Leeds. He was made redundant by the Club on 23 July 2013 and by virtue of his employment contract was entitled to pay covering his notice period (later agreed to be a period of 12 months, amounting to £200K+). This was a legal and fair way to get rid of Mr Williams.

But the Club had a problem – they could not really afford to pay Mr Williams’ notice period and so they set out to find a good reason to summarily dismiss him. A couple of days after making him redundant, the Club, or rather the investigators it had employed, struck gold. It discovered that some five and a half years earlier Mr Williams had sent an email containing obscene pornographic images to a male friend at another football club. He was summarily dismissal without notice – meaning that he was no longer entitled to his £200K+ salary for his notice period.

Mr Williams brought a claim in the High Court for wrongful dismissal, arguing that the sending of the email was not enough to amount to a breach of contract on his part and so entitle the Club to repudiate the contract (dismiss him). The Club, of course, contended otherwise and also relied on evidence discovered after the dismissal that Mr Williams had forwarded the same pornographic email to two further people, another male friend at another football club and a junior female colleague.

The judge agreed with the Club and found that the act of sending the emails was a repudiatory breach of contract for the following reasons:

  1. Mr Williams had a very senior managerial post in the club.
  2. The obscene and pornographic nature of the images (as Mr Williams so admitted in evidence).
  3. The sending of the images to the junior female colleague was likely to have caused offence and could have laid the club open to a claim for sexual harassment.
  4. The potential harm the sending of the emails could have had to the Club’s reputation, which was as important for securing and retaining sponsors.

So Mr Williams’ claim failed. He was not entitled to his £200K notice.

The startling thing about this case was that the club succeeded even thought it had clearly been looking for a pretext to dismiss him. The Club was clearly acting in bad faith.

Consequently employers may feel tempted to rely on it whenever they suspect that an employee working out her notice period has or is about to bring a claim for constructive dismissal. Why not find a pretext to dismiss for gross misconduct.

However, the result in Williams may be a result of the fact that his claim was for wrongful dismissal. Such a claim can be defeated by showing that dismissal was, in fact, justified. The reason why the employer dismissed is irrelevant.

However, in an unfair dismissal claim, the Tribunal must decide what was the reason for the dismissal. It seems at least arguable that the reason for the dismissal was not the pornographic email but its own desire to save money. Indeed it was found as a fact in the case that Leeds had already decided not to pay the redundancy payment.

Even in an wrongful dismissal case such as this, it may be that the employers conduct was a breach of the implied term of trust and confidence (who would want to work for an employer prepared to behave in this way?) and that dismissal was a consequence of that breach for which Mr Williams was entitled to be compensated (this argument does not seem to have been advanced on his behalf).

So other employers looking for a pretext to dismiss may find the outcome of their efforts rather less agreeable.

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By Ben Amunwa

He attracts adoration and loathing in roughly equal measure. Jeremy Clarkson’s suspension from Top Gear after allegations that he punched a producer was soon met by an online petition and close to a million signatures calling for his return. Politicians, including David Cameron, have waded in.

The stakes are high for the BBC and its notorious presenter. Depending on the circumstances, punching a colleague may well constitute gross misconduct and justify summary dismissal. Clarkson has previously received a final warning for other matters which would normally mean that any further act of misconduct would result in dismissal.

A team of BBC officials has been tasked with investigating the matter and, if necessary, disciplining Clarkson. It is a task fraught with many pitfalls for any employer, even without a household name at the centre of it.

To make their lives slightly easier, here are 7 tips for the BBC officials embroiled in the latest Clarkson saga.

  1. Inform Clarkson of the specific allegations against him

It may seem obvious, but it’s remarkable how often employers either fail to do this adequately or completely forget to do it. Once detailed allegations have been made against an employee, they should be informed without delay of what they are accused of. Employees must be able to understand the basic case that they will be responding to.

  1. Appoint independent, senior investigators

An employer should always appoint investigators (and if need be, disciplinary officers) who are either of a similar or a higher rank than the person being investigated. This is common-sense and helps to ensure that the process is independent.

In Clarkson’s case, this should be persons of considerable seniority in the BBC who are unlikely to be swayed by the presenter’s profile.

None of those involved in the process should be persons who witnessed or were present at the incident, or at any previous incidents of Clarkson’s misconduct. Clarkson should be informed by letter of the identity of the investigator (and any disciplinary officer) so that he can object to that person on the grounds of bias or partiality.

  1. Interview the witnesses

Media reports suggest that the incident was witnessed by members of the public and BBC employees. The employer should interview any eye-witnesses to the incident. Any discrepancies should be put to the witnesses (including Clarkson himself) for their response. The interviews should be recorded preferably in writing, and the witnesses should be given the opportunity to read through the notes of their ‘statement’ and invited to sign and date it to confirm the accuracy of its contents. It is preferable to have a notetaker accompany the investigator to ensure that the interviews are recorded accurately.

  1. Dial 999

An employer may have to consider referring certain types of serious misconduct to the police. If the police investigate and charge Clarkson and if he is later convicted or pleads guilty to a criminal offence, that makes the BBC’s job much easier as they can use this as conclusive evidence of his misconduct. Indeed, it may relieve some of the pressure on the BBC investigators.

If, as sometimes happens, there is a police investigation that runs parallel to a disciplinary investigation, the BBC should press on with its own investigation and come to its own separate conclusions rather than wait for the police and CPS to take action, as this could prolong the process by some months.

  1. Previous warnings

Clarkson is hardly a model employee when it comes to his conduct. In May 2014 he received a final warning after using a racist term on film that was leaked to the Mirror. In the same year the programme was criticized after Clarkson used a derogatory term for Asian people in a Top Gear Burma special.

What should an employer do when investigating and disciplining an employee with an unattractive record? An employer may take into account the fact that Clarkson has already received warnings, including a final warning, even if they relate to a different issues (eg. racist remarks as opposed to physical violence). Previous warnings may be more relevant where the misconduct is similar and where the warning itself has not been challenged on an appeal and was issued after a fair process.

  1. Take and keep good notes

In general, in order to avoid disputes in the Employment tribunal over what was and was not said in any given meeting or disciplinary hearing some years earlier, it is good practice to take and keep a good contemporary note of all relevant conversations. Handwritten notes should be typed up faithfully and all Parties should be given the opportunity to see the typed notes to confirm their accuracy or provide their amendments (regardless of whether those amendments are accepted unanimously or not).

Bear in mind that under the Data Protection Act 1998, anyone can request that an employer disclose any personal information that they hold on them. To avoid embarrassing emails surfacing later, all communications about the disciplinary process should be kept professional and impartial in tone and content.

  1. Make the punishment fit the crime

If the BBC has followed the above tips and at the end of a reasonable investigation it genuinely believes that Clarkson punched his producer in the way alleged, this is likely to constitute gross misconduct which would normally result in summary dismissal. The BBC should consider what its internal policies have to say about any appropriate sanction that should be applied.

However, if the investigation uncovers a different set of facts that cast Clarkson’s conduct in a less serious light, then a lesser sanction or no sanction may be appropriate, in accordance with the BBC’s disciplinary policy. However, given Clarkson has already had a final warning, if any misconduct is found, dismissal is the most likely outcome.

This post draws on a handy new book, Employment Guide to Procedures, by Simon Harding of 36 Bedford Row, which Ben helped to edit.

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Justification for indirect discrimination: State aims vs. free movement of workers

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The case of Kapenova v Department of Health has confirmed that the domestic approach to the justification defence in indirect discrimination cases is compatible with EU law. There is thus very considerable latitude for the justification of indirectly discriminatory provisions which would otherwise contravene the fundamental EU principle of free movement of workers. Kapenova had […]

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Great Britain closes in on Sweden: New rights for fathers, same sex partners, and intended parents in a surrogacy to attend 2 antenatal appointments

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Count Yourself Lucky

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In 2008, the House of Lords gave judgment in the case of Lewisham v. Malcolm. The case concerned the appropriate comparator for claims based on S3 A (1) of the Disability Discrimination Act 1995 which provided for liability for disability related discrimination.  The judgments were subject to widespread criticisms on the grounds that they made […]

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Holiday (Pay) from Hell

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