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Summary Dismissal and Gross Misconduct

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can an employee be dismissed without notice for disclosing confidential information?

Yes, held the High Court (Whipple J) dismissing a claim for wrongful dismissal and breach of contract in Farnan v Sunderland Association Football Club.

The Claimant was the Club's International and National Marketing Director.  The Club summarily dismissed him without notice, having suspended him and trawled through his work emails. The Club alleged breaches of confidence and other matters, including sending a lewd email and making derogatory comments.

The Court found that the Claimant had committed serious and repeated breaches of contract by 'banking' confidential information about sponsorship bids, which he sent to his wife's private email, purportedly for administrative support but in fact to keep evidence if he ever ended up in litigation with the Club.

The Claimant had also used confidential bid documents for his own purposes in seeking employment, briefed a journalist against clear Club policy, and wrongly disclosed a sponsorship agreement to a third party. This was sufficient justification for dismissal without notice. The Court noted that an email containing confidential information to a former director, David Miliband, was not a breach of contract, as on the facts it was in the best interests of the Club, at a time of crisis around the appointment of Paolo di Canio, whose politics were controversial.

The Court however criticised the Club for trumping up part of its case against the Claimant, alleging that his emails had derogatory comments about the CEO, and noting that his sending a lewd Christmas card email of 10 bare-breasted women was not gross misconduct in the context of other incidents tolerated by the Club, including a birthday card sent by a co-director to the Claimant's wife saying 'Happy Birthday all the breast', which the Club's CEO appeared to have accepted as a typo, requiring more care in future.

This is a case of 'two halves', with employment tribunal proceedings for unfair dismissal stayed pending the outcome of the contractual case.