“You’ll be lucky to get him to work for you” or “Not such a golden handshake!”

Mr X was a valued and trusted senior member of staff at a large professional firm, he was also a friend of a junior member of staff, Mr Y, who he had introduced to a well-known national charitable organisation. Mr Y was not happy at work and had been offered alternative employment but the new employer required an earlier start than permitted by the 13-week notice period of his present contract and he believed (as did Mr X) that he would not get the professional reference he needed from his current employer if he breached his contract. In fact, the firm would have provided Mr Y with a reference, in line with their usual practice, but had decided to withhold it, if one was requested, until the end of his notice period.

In addition to his main employment Mr X also operated a consultancy business and Messrs X and Y agreed that Mr Y would give Mr X’s consultancy email address for the purposes of a reference and, in due course Mr X received a request from the recruitment agency for what was evidently intended to be a professional reference. There was then email correspondence between Messrs X and Y in which Mr X said “I can’t give a reference in the name of [their employer]. Let’s talk in the morning as I have an idea”.

The following day (during working hours and using the employer’s computer) Mr X drafted an email reference stating “it is not the policy of [their employer] to give….” (the email stopped there and was not sent, presumably because Mr X realised he had painted himself into a corner).

A few minutes later a Mr X drafted and sent a further email to the recruitment agency which stated:

“I understand from [Mr Y] … that he’s had a discussion with you concerning a reference from his current employer, which I confirm is correct …
I have known [Mr Y] in a professional and personal capacity for “some time” …
From what I have witnessed, in his professional capacity [Mr Y] is accurate, extremely well presented and exhibits a good work ethic. His time keeping is excellent. He gets on well with people …
In his personal life …

Mr Y left the current employer before the end of his notice period to start his new job and the current employer, when checking Mr Y’s computer (as they were entitled to do under their IT Policies), found various exchanges between Messrs X and Y and so went on to examine Mr X’s computer and found evidence that he seemed to be spending a lot of time at work dealing with personal emails regarding his consultancy business and activities for the charitable organisation. He was duly summoned to a disciplinary meeting and was summarily dismissed (i.e. sacked immediately and without notice) for providing the reference and thereby facilitating Mr Y’s breach of contract.

The employer was concerned about the serious matter of spending a large proportion of his working day on other matters but indicated that this would not of itself have justified dismissal. An appeal was unsuccessful and Mr X submitted a claim for unfair and wrongful dismissal asserting that the reference was personal, not professional, and that providing the reference, albeit during working hours and using the employer’s computer, did not justify dismissal. It was also said that the firm had failed to consider Mr X’s previous good service and senior position within the firm (mitigation which was not expressly addressed in the dismissal or appeal decision letters). I was instructed by the firm directly under the Direct Access scheme.

When giving evidence Mr X was unable to explain the contents of the emails referred to above, or what he and Mr Y talked about “in the morning”, what his “idea” was or what he knew of the “discussion … concerning a reference” between the agency and Mr Y. He accepted that his actions had been “underhand”.

The Tribunal found that Mr X believed that Mr Y needed a professional reference and that the employers would not provide one and, in seeking to assist his friend and colleague, Mr X had deliberately “sailed as close to the wind” as he thought he could and in doing so had facilitated the breach of contract; he had intended to cut across the partners’ wishes and provided a reference that was meant to be taken as both professional and personal.

The Tribunal confirmed that Mr X’s actions amounted to a repudiatory breach of the relationship of trust and confidence which was necessary between an employer and employee, particularly given Mr X’s senior and trusted role within the firm. The Tribunal accepted the employer’s evidence that these mitigating factors had been considered by the senior managers dealing with the dismissal and the appeal.

In the circumstances the claims for unfair and wrongful dismissal failed.

It seems to me that the key “take aways” from this matter are:

For the employer:

– Ensure that your decision letter accurately and fully reflects all the matters relied on; the failure to rely on the extensive evidence of the time spent on Mr X’s private activities at work, which could have justified dismissal, meant the focus of the hearing was, inevitably, on the status and provision of the reference.
– Make sure your employment policies are clear that you are entitled to access records of all internet activity on, and emails, etc. sent to and from, your system.
– Have a clear policy on the provision of references (as recommended by the ACAS Guidance) stating how you “handle reference requests, [and] … what information [you] and [your] employees can provide”.

For the employee:

– Consider your actions carefully and how your employer might view them; if in doubt, ask for guidance or assistance. If you have to “sail close to the wind” or feel your actions may be viewed as “underhand” then you should almost certainly stop!
– The fact that you were acting out of loyalty to a friend is unlikely to provide any protection if your actions have a detrimental effect on your employer or fly in the face of the employer’s clearly expressed wishes.
– Know your employer’s IT Policy; in any event, bear in mind that your computer and online activities are, almost inevitably, recorded somewhere and can be checked.

Direct Access allows clients (in employment cases, either employers or employees) to instruct barristers directly, rather than via a solicitor; please contact the clerks on clerks@becket-chambers.co.uk for more details of how Direct Access works in practice.