When an employee commits a deliberate and wilful breach of a fundamental term of their contract of employment, an employer may dismiss them summarily for gross misconduct. Determining what amounts to gross misconduct is not always clear cut, and it is a decision employers must reach based on a considered assessment of the facts.
In a recent High Court case Mr Farnan, a Marketing Director for Sunderland Football Club, was invited to a disciplinary hearing following a trawl of his work emails. The Club’s investigations resulted in 28 allegations of misconduct, ranging from sending an inappropriate Christmas e-card from his work email account depicting ten women with their breasts exposed to disclosing confidential information about the Club’s sponsorship arrangements. Mr Farnan was summarily dismissed and subsequently brought a claim for wrongful dismissal in the High Court.
The Court found that Mr Farnan had committed serious and repeated breaches of his contract with the Club which justified his summary dismissal. These included his use of confidential Club documents to support his application for a new job and his disclosure of confidential information concerning sponsorship deals to a journalist.
However, the sending of the Christmas e-card did not amount to a breach of contract. The Court felt the card was not indecent or obscene, and took into account the Club’s relaxed attitude to similar incidents in the past. The Court also criticised the Club for the large number of insignificant or trivial charges brought against Mr Farnan and accepted that, to an extent, the Club had “trumped up” the case against him.
The decision confirms that misuse of confidential information can amount to gross misconduct, but the Court’s comments about trivial charges show that employers can best serve their own interests by focusing on the most serious misconduct at disciplinary hearings. Where there is an abundance of evidence available, drawing attention to minor indiscretions is unlikely to strengthen an employer’s position, and could undermine it.