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Sending lewd Christmas card did not justify employee’s summary dismissal

Posted by TonyBrownEmploymentSolicitor on December 23, 2015

Is it ever acceptable to send lewd emails? Probably not, but in the next case the court ruled that an employer was not justified in treating as gross misconduct the fact that its employee e mailed a lewd Christmas card.

Until his summary dismissal, the Claimant was employed by Sunderland FC as its Marketing Director.  The Claimant brought proceedings in the High Court for wrongful dismissal.

One of the allegations relied on by the Club to summarily dismiss the Claimant was that he had sent a lewd Christmas card from his work e-mail address.

There were two aspects to the allegation. The first related to the image on the card, which the employer argued was obscene. The card itself showed ten bare breasted women, wearing Santa Claus hats, with the words "Breast wishes for Christmas" written below the image.

he court dismissed the Club’s argument that the card was obscene, ruling that cards just like it are on sale openly in shops on the high street. The card could not reasonably be characterised either as indecent or obscene. The court said that perhaps some people would consider the card offensive, but only mildly so.

The second aspect of the allegation related to the fact that the employee used his work email address to send out the Christmas card. The employer argued that it constituted a breach of contract because it breached the acceptable use requirement in the Club’s handbook. However, the court considered other incidents where the Club was said to have displayed a tolerant attitude towards offensive communications by senior executives, including an email sent by another director, also from his work email address, in fact to the Claimant’s wife, wishing her "Happy birthday all the breast".

The Club’s CEO said that she had spoken to the relevant director, and accepted his explanation that this was a typographical error, and he meant to say "best". The CEO told him to be more careful in future but took no further action. The court could not accept that the CEO believed the explanation she was given by the director; instead, it inferred that she was relatively relaxed about this episode.

Based on her own track record of responding to similar issues, the court concluded that, if the CEO had discovered that the Claimant had sent the Christmas card from his work e mail address at any time before the Club embarked on a disciplinary process against the Claimant, she would have concluded that the card was not a serious matter and did not warrant further action.

In the circumstances, the court could not accept that sending the Christmas card constituted a breach of contract by the Claimant sufficiently serious to warrant summary dismissal.

However, the court went on to rule that the Claimant had committed serious and repeated breaches of his duty of confidentiality for which the Club was entitled to dismiss him without notice.

Comment

If this case has a familiar ring, it may be because it shares some similarities to a decision earlier this year in which the High Court ruled that Leeds United was entitled to dismiss an employee, who was already on notice of redundancy, when it discovered that, five years previously, he had forwarded a pornographic e-mail to a junior colleague.  The court in that case ruled that Leeds was entitled to treat his conduct as a repudiation of the contract of employment.

Sunderland’s lawyers relied on this case to justify its dismissal of the Claimant. However, the High Court ruled that the case was materially different on its facts to the Leeds United ruling, in which the court characterised the images forwarded on the club's email by the employee as obscene and pornographic.  Those images were markedly more extreme in their offensive content than the single image forwarded by the employee of Sunderland FC.

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