When I was a youngster I supported Leeds United before, and through, their best days with Billy Bemner, Norman "Bites your legs" Hunter, Paul Madeley, Eddie Gray and their manager Don Revie.
While Leeds are languishing near the bottom of the Championship they have successfully defeated a £200,000 High Court claim by an executive for a breach of contract.
It is common when an employee is to be dismissed for a search to be made to see whether there are grounds to terminate without notice if an employer wants to reduce the cost of the dismissal or perhaps does not feel the employee deserves a substantial pay out.
One area of scrutiny is expense claims because a very dim view is taken of that by the courts and the Employment Tribunal.
Another tactic is to use forensic computer investigators to search for emails which show repudiatory or serious breaches of contract to justify termination without notice or compensation. To do this one has to have the appropriate rights in your Internet and Email Policy to look for the email, comply with the Data Protection Act 1998, follow the relevant Information Commissioner Code and carry out a risk assessment.
These serious breaches may be by way of the sending of inappropriate emails as in this case or emails and documents showing that an employee is competing with his employer.
We often receive instructions where simply by looking at the papers we are sent we can very quickly identify such a right to terminate saving very substantial sums especially with highly paid individuals with long notice periods or a fixed term with some years to run.
Some years back there was a case on different points where Mr Lou Macari had a dispute with Rangers. It was said on behalf of Mr Lou Macari that account should be taken of the fact that Rangers were deliberately seeking to exercise a clause in the contract that he should live within a radius of the Club to dismiss him. His argument failed.
In the Leeds case it did not matter that Leeds were making searches for some "dirt" on the employee as one might put it colloquially, and that they had not dismissed for the e mail showing women in a shower which they discovered after the dismissal.
The key points were
1. Although the offensive email was seen 5 years earlier the employer established that it did not know about it. Had they known about the email they would not have been able to terminate because they would have waived any breach and/or decided that they wanted to carry on with the contract.
2. This case is another good illustration of the fact that in a wrongful dismissal or breach of contract claim regard can be had to something which was not known about at dismissal and found out about by the employer after the dismissal.
If the claim was an unfair dismissal claim in the Employment Tribunal the Employment Tribunal would have to look at the reason the employer had in mind at the time of dismissal (redundancy) and whether the correct procedure had been followed for that.
If Leeds could not show a fair reason, and that relevant procedures were followed then the dismissal would have been unfair but in a tribunal may reduce the basic award if it finds that the claimant's conduct before dismissal (or before notice of dismissal, if notice was given) was such that it would be just and equitable to reduce it. The tribunal's wide discretion enables it to reduce the basic award by anything from zero to 100%.
In contrast with the rules on reductions to the compensatory award the tribunal can reduce the basic award even if the conduct has not contributed to the dismissal. It can also take into account conduct that is not discovered until after the dismissal as in this case.
The Compensatory Award has to be:
"such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".
In Polkey v AE Dayton Services Ltd , the House of Lords stated that the compensatory award may be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. This is commonly referred to as a Polkey deduction (or reduction). This does not mean that the unfair dismissal becomes a fair one, but loss can be awarded with regard to what might have happened in the future.
If the appropriate process and the decision to dismiss fairly for redundancy or gross misconduct would have taken say 2 weeks then an award of 2 week's compensation would be possible.
Polkey is probably the most commonly used get out of gaol card (especially with redundancies) but it can be of uncertain application. It can also be based on longer periods of loss but the application of percentages to the total loss so as to get the right Compensatory Award.
The judge said: “The more likely sequences of events, in my judgment, is that the Club had decided to give notice of termination to the Claimant on grounds of redundancy with three months notice; they had decided that they would not pay him any salary in any event; and they were actively looking for reasons to dismiss him on grounds of gross misconduct, and shortly after giving notice of termination, the managers saw the e-mail and wrote the letter dated 24 July 2013 making disciplinary allegations against the Claimant.”Evidence submitted by Mr Williams’s legal team included an email sent by forensic investigators to then-managing director David Haigh.It said the investigators had “analysed some 6,000 images attached to the Claimant’s e-mails and conducted targeted keyword searches for potentially offensive language.”