UK: Termination - employers can rely on historic repudiatory breach to dismiss summarily on discovery of the breach

Employers may be able to dismiss summarily and defeat a wrongful dismissal claim if they discover a repudiatory breach by the employee, even where the breach occurred several years prior to its discovery and is only discovered by the employer trawling through emails looking for grounds to dismiss.

In Williams v Leeds United FC, the employee had already been given notice of redundancy. The employer had then engaged private investigators to look for evidence of gross misconduct to enable it to avoid paying out the rest of the notice period. The High Court held that the conduct discovered, sending pornographic emails from a work email account to a junior work colleague and others, amounted to a repudiatory breach. This justified summary dismissal on its discovery, notwithstanding how it was discovered and the lack of any complaint from the recipients.

However, employers should bear in mind that there might still be a claim for unfair dismissal in such circumstances. Further, particularly where such a search fails to unearth any gross misconduct on the part of the employee, the employee might seek to rely on the employer's actions as a repudiatory breach by the employer enabling him to resign immediately free from restrictive covenants and with a compensation claim.