The facts
In XX v YY, the claimant was an assistant head teacher who had been employed by the respondent school since 2014. Between approximately 2015 and 2018, she was involved in a coercive and controlling relationship.
During that relationship, she sent a message of a sexual nature to a person she believed to be under the age of 18. The employer accepted that she sent the message because she feared that she or her children would suffer serious harm if she did not send the message.
The claimant did not report the incident to her employer or follow safeguarding procedures. The matter came to light around 18 months later when her former partner reported it to the school.
Following an investigation and disciplinary process, the claimant was summarily dismissed for sending the inappropriate message and for failing to report a safeguarding concern.
The claimant brought employment tribunal (“ET”) claims for discrimination arising from disability, unfair dismissal and wrongful dismissal. The claims all failed before the ET. The claimant appealed and only the wrongful dismissal claim was permitted to proceed to the Employment Appeal Tribunal (“EAT”).
The legal issues
Wrongful dismissal is a contractual claim that can arise where an employer dismisses an employee without giving the notice required under their contract. In the context of wrongful dismissal and cases of alleged gross misconduct, the key question is whether the employee's conduct was serious enough (a “repudiatory breach”) to justify summary dismissal without notice; if not, the employee may be entitled to recover their notice pay. This is assessed on an objective basis.
The employment tribunal’s decision
Although the ET acknowledged that the claimant had acted under duress when sending the message, it held that the conduct nevertheless objectively amounted to a repudiatory breach. In its view, the claimant’s motives did not alter that conclusion.
The wrongful dismissal claim was therefore dismissed.
The employment appeal tribunal’s decision
The EAT allowed the appeal and remitted the wrongful dismissal claim to the same ET for reconsideration.
The EAT held that the ET had erred in law by effectively treating duress as irrelevant to the question of whether the claimant’s conduct amounted to gross misconduct. The correct approach was to consider all relevant circumstances that bear upon the objective assessment of the conduct.
Drawing on authorities concerning repudiatory breach and mutual trust and confidence, the EAT emphasised that context can be relevant. While an employee’s subjective motives will not usually determine the outcome, the circumstances surrounding the conduct may influence how a reasonable person would objectively assess it.
The EAT stated that the ET should have asked whether the claimant’s conduct, viewed in light of the pressure she was under and the employer’s safeguarding expectations, was so serious that it destroyed the trust and confidence necessary for the employment relationship to continue.
Importantly, the EAT did not decide that the claim for wrongful dismissal should succeed. Instead, it recognised that there was more than one possible answer. The ET would need to weigh both the significance of the alleged duress and the claimant’s continuing failure to report the incident over the following 18 months, despite her senior safeguarding responsibilities.
Practical lessons for employers
This case highlights that, when assessing whether conduct amounts to a repudiatory breach of contract justifying summary dismissal, tribunals need to consider the circumstances in which the conduct occurred, including evidence that the employee acted under duress or extreme pressure. Employers should:
- Consider context carefully. When assessing similar cases, employers should evaluate not only what happened but also any significant coercion, pressure or other exceptional circumstances surrounding the conduct.
- Distinguish between the act and subsequent conduct. Even where an employee acted under duress at the time of the initial incident, later failures to report, disclose or rectify the situation may still be highly relevant to the assessment of trust and confidence.
- Document the reasoning behind disciplinary decisions. Where mitigation is raised, employers should ensure disciplinary outcomes clearly explain how that mitigation has been considered and why it does, or does not, affect the conclusion that summary dismissal is justified.
