EAT reconsiders role of duress in wrongful dismissal claim

Background

In the case of XX v YY, the claimant was an assistant head teacher who had been subjected to a coercive and controlling relationship over a number of years.

Under extreme pressure from her partner, she sent a message of a sexual nature to someone she believed to be under 18. It was accepted by the employer that she did so because she feared serious harm to herself and her children if she refused. However, she did not report the incident for around 18 months, despite being aware of her safeguarding responsibilities.

The matter only came to light when her former partner reported it to the school. Following an investigation and disciplinary process, the claimant was summarily dismissed for gross misconduct.

She brought claims including unfair dismissal, discrimination arising from disability and wrongful dismissal. Only the wrongful dismissal claim proceeded to the EAT.

EAT decision

The EAT allowed the appeal.

The employment tribunal had accepted that the claimant acted under what it described as "duress" when sending the message. However, it concluded that this was irrelevant to whether her conduct amounted to a repudiatory breach of contract justifying summary dismissal.

The EAT held that this approach was wrong. When determining whether conduct amounts to gross misconduct, a tribunal must consider all relevant circumstances, including factors that may affect an objective assessment of the employee's actions.

The question was whether the claimant's conduct, viewed in context, so seriously undermined the trust and confidence inherent in the employment relationship that the employer could no longer be expected to retain her in employment.

The claimant's coercive circumstances were therefore relevant and should have been taken into account. However, the EAT also noted that the tribunal was entitled to consider the seriousness of her safeguarding obligations and the fact that she failed to report the incident for a prolonged period after it occurred.

As the outcome was not inevitable, the wrongful dismissal claim was remitted to the same tribunal for reconsideration.

Learning points

This case illustrates the distinction between unfair dismissal and wrongful dismissal. While unfair dismissal focuses on the reasonableness of the employer's decision-making, wrongful dismissal requires the tribunal to determine whether the employee's conduct was actually serious enough to amount to a repudiatory breach of contract.

The decision also demonstrates that context can matter when assessing alleged gross misconduct. Employers should ensure that disciplinary investigations fully explore any factors that may have influenced an employee's actions, particularly where issues such as coercion, abuse or disability are raised. While such factors will not necessarily excuse misconduct, they may be relevant when assessing the seriousness of the conduct and whether summary dismissal is contractually justified.

For more information or advice, please get in touch with Sarah Hodgkins in our Employment team.