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Copy to Self @ home – BE CAREFUL!

Copy to Self @ home – BE CAREFUL!

Sally Cowen considers the recent High Court Judgment in Farnan v Sunderland Association Football Club Ltd [2015] EWHC 3759 (QB).

We’ve all advised clients to make sure that they accumulate evidence of the breach of trust and confidence they allege. Following Brandeaux Advisers v Chadwick [2010] All ER 235 and Tokio Marine Kiln Insurance v Ms Yi Yang [2013] EWHC 1948 (QB), we have had to make it clear to clients that this could be a contemporaneous diary kept at home, but not to take the confidential documents themselves. This can be crucial when launching a claim, or advising a client whether to resign and claim constructive dismissal.

However, this case stands as a warning to us all that we must be careful about the type of documentation which is sent to private email addresses. The client could end up on the wrong side if they are found to have taken confidential documents in breach of their contractual terms and conditions.

The facts concerned F, who was employed as the International and National Marketing Director of Sunderland Association Football Club from 2011 to 2013. He was dismissed for gross misconduct. F brought a claim in the High Court for wrongful dismissal and failure to pay a bonus. The court made clear that they looked at the facts sufficiently to deal with the wrongful dismissal and not to deal with issues reserved to the Employment Tribunal proceedings.

Whipple J looked at the service agreement and handbook of the employer, both of which referred to not disseminating confidential information and requiring authorisation of the Media and Comms Department before speaking to the press.  

The court held that it was acceptable that F had emailed business emails to his wife, at her home email address in order that she knew of his travel plans, or could assist him by printing out documents at home. This was not a breach of confidentiality. Nor was it a breach, the court held, for him to send her emails such as a draft email he was going to send, to ask for her opinion on it, before he sent it. The court held this was tantamount to discussing the work at home and taking her advice. Again, this was considered reasonable.

But the court decided that there was a breach where F had ‘banked’ work emails at home, by sending them to his wife’s home email account, essentially in order that he had evidence before he was dismissed. It was the nature of the documents which he sent which the court concluded meant the difference between breach or not. He sent home documents which included confidential Board minutes. The court held that the warning by the then club Chairman, Mr Quinn, to F carefully to file proof of the work he had done on a particular contract was not ‘authorisation’ to take confidential documents away from the office.

The court held that this retention of documents was a Breach of Contract.

The club also accused F of a breach of contract by disclosing confidential information to a third party. F sent a copy of a presentation he had made to an acquaintance, with a view to asking him for work, at a time when he saw the writing on the wall with his current employment. The problem was not the looking for new work before he left his current post, it was the content of the presentation. It contained confidential business information which, if disseminated by the acquaintance, could disadvantage the club. The court upheld that communication as a breach of contract.

Whipple J also held that an ‘off the record’ conversation with a journalist, who then referred to F in the article and gave away confidential information was a breach.  The claim therefore failed and the claim for a bonus was also dismissed for other reasons.

The club also accused F of breaches of use of the email system, by sending various emails which it said were offensive, lewd or otherwise inappropriate. Whipple J set out clearly (para 62 to 64) his interpretation of the service agreement and its use of ‘serious or repeated breach’. He clearly indicated that ‘repeated’ had to have some ‘gravity in the individual breaches, even if they are repeated. It is only if the repeated breaches collectively amounted to something serious that this clause could be invoked by the employer’. He therefore dismissed the allegations relating to the specific emails.

This case confirms that, where there is a contractual requirement to maintain confidentiality, the court will consider the content of the emails sent home as being the critical aspect of the decision on whether there has been a breach of contract. The court was happy to accept that sending documents home to work on, or even to discuss with a spouse may be justifiable, but that stockpiling evidence consisting of confidential documents is a breach of contract.

We should all, therefore, be careful to ensure that a client with a potentially good constructive dismissal claim doesn’t throw it all away by trying to be clever by helping themselves to “disclosure” documents before the case reaches that stage.

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