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RUGBY PLAYER’S MOONIE IS NOT REPUDIATORY MISCONDUCT

The rugby league club, Huddersfield Giants, has been found to have breached the contract of one of its players, Keith Mason, and ordered to pay £167,000 in damages and £35,000 in costs. 

The topical issue in Mason v Huddersfield Giants was that the club unsuccessfully suggested that Mason had himself acted in repudiatory breach of his employment contract since a photograph of his bottom had appeared on his Twitter account following a team bender nicknamed “Mad Monday”.

It transpired that Mason had not posted the photograph but rather it had been put up by his girlfriend, together with a tag line “what the hell is this?”  The photo was taken down two days later but Huddersfield decided that it had not been taken down quickly enough, reputational damage had been done and, as a result, Mason had committed an act of gross misconduct and, therefore, was summarily dismissed.

The nuance to this case was that Huddersfield had recently bought new players in Mason’s position and there was documentary evidence before the court of the club, prior to the dismissal, unsuccessfully attempting to offload Mason to other clubs.

The Court (Saffman HHJ) found that Mason’s actions did not objectively amount to a repudiatory breach of contract.  Moreover, looking at all the evidence and reasonable inferences from the evidence the real reason for the dismissal was the club’s desire to remove Mason, who was due a £95,000 annual salary, from its books.

In terms of practical lessons, clubs and other employers nowadays should have a written IT policy setting out clearly that misconduct may include the misuse of social media, including Facebook, Twitter and blogs. Without that clubs may find it difficult to demonstrate that players were reasonably aware that their actions, often posted away from “work”, could result in disciplinary action let alone dismissal. Recent case law also suggests that the usual BHS v. Burchill tests apply to such dismissals as much as they do to other actions of misconduct.  Further, the employer will need to show that serious harm, actual or potential, would arise to the reputation of the club, its players or directors from the social media misuse. 

Unless the club can demonstrate that those procedures have been adopted, it will be at serious risk of a finding of unfair dismissal (even if there may be a reduction in compensation for contribution): Trasler v. B&Q ET/1200504/2012; VC Reece v. JD Whetherspoons Plc ET2104806/10; Samuel Crisp v. Apple UK Retail Ltd ET 1500258/2011.  Alternatively, such as in the case of Huddersfield, the club may fail to establish that the relevant act amounts to a repudiatory breach of contract.  Indeed, in the recent case of Flexman v. BG Group plc ET/2701998/11, the manner in which an employer investigated alleged misuse of company confidential information on LinkedIn was found itself to amount to a repudiatory breach, entitling the employer to resign and successfully claim constructive unfair dismissal.
  
Related Link:  profile of John Mehrzad
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