“The system will not work if people think they can ignore court orders and destroy evidence. Those who so can expect terms of imprisonment.”
Mr Dadi was an employee of OCS, an aviation cleaning contractor working at Heathrow for (amongst others) British Airways. OCS lost the British Airways contract to a competing firm Omni Serv and Mr Dadi TUPE-transferred over to that company.
Just prior to the transfer, OCS issued a claim against Dadi for breach of contract, breach of fiduciary duty and breach of confidence. It was alleged that he had transmitted confidential business documents and information belonging to OCS to his home email, external storage devices and third parties (including Omni Serv).
The High Court imposed an Order which obliged Dadi not to destroy evidence and not to tip anyone else off about the Order or the obligations contained in it. It also had on the front a formal Penal Notice, explaining in bold and scary terms that any disobedience rendered Dadi liable to be imprisoned, fined or have his assets seized.
The then following series of acts by Dadi is therefore pretty much exactly what you should not do upon receiving an Order of this kind:
- telephone an employee of Omni Serv and tell him about the Order;
- delete emails from your personal phone;
- conduct a mass deletion of 8,000 emails from your web-based email account; and
- inform members of your family about the Order.
Upon subsequently receiving legal advice, Dadi realised the potential consequences of his actions. From there on he admitted his breaches and was cooperative and apologetic, not to mention terrified.
In considering what sentence to impose the Court took into consideration numerous factors, including that Dadi had made “deliberate and contumacious” breaches, tipping off the very person the Order was intended to cover and culminating in several separate deletions of emails and information. There was no way that it could have been accidental.
Against that, the Court gave Mr Dadi credit for the steps he took once receiving legal advice. It noted that although there had been several breaches these had all been committed within the first 48 hours of receiving the Order. It accepted Mr Dadi’s apology as genuine and acknowledged that he had fully cooperated with OCS after receiving legal advice and was of previous good character.
The Court appreciated that imprisonment is a sentence of last resort. However, it felt itself on balance required to impose a custodial sentence in order to show its strong disapproval of disobedience in such style of the Order, to act as a deterrent and to ensure future compliance with Orders by those who may be tempted to ignore them. The Court imposed four sentences of six weeks to be served concurrently, i.e. six weeks inside all told.
Lessons for employers
- It is not often we see the Courts using these powers in the employment context. It therefore serves as a useful reminder to both employers and employees that compliance with Court Orders is not to be taken lightly. The law has teeth which it will not be shy of using where there is deliberate or reckless breach of its instructions.
- In the end the terms of both the Order and the Penal Notice on it were very clear, so on the basis quoted at the head of this piece, Dadi had to be seen to be punished. His actions will sadly also have done serious damage to his credibility as a witness, so that if there were any benefit of the doubt in relation to his evidence in defence of OCS’s claims, he is now much less likely to get it.
- If you are in receipt of a similar Court Order as employer, make sure in writing that those responsible for compliance with it (a) know this and (b) are told that failure in this respect may lead not just to possible dismissal but also to some potentially awkward gaps on their CV while serving as a guest of Her Majesty.
- If there is an inadvertent breach, notify the Court and the injuncting party immediately so that any possible mitigating steps can be taken and there is less scope for criticism of you or your employee by the Court. This is likely to have a direct impact on the level of any sanction imposed.