XX v YY

Whether conduct amounts to gross misconduct justifying summary dismissal requires an objective assessment of all relevant circumstances. Pressure or duress affecting the employee when the conduct occurred may be relevant, particularly where it helps explain how the conduct should reasonably be viewed. It is not confined to mitigation after a breach has been established.

The assessment must consider whether the conduct so undermined the trust and confidence inherent in the employment contract that the employer could no longer be required to retain the employee. The significance of pressure may differ between the original conduct and a later failure to report it. The employee’s role, responsibilities and awareness of relevant obligations remain material.

The claimant, an assistant head teacher, sent a sexual message to a person whom she understood to be under 18 while subject to a coercive and controlling relationship. It was accepted that she feared serious harm to herself and her children if she did not send it. She did not report the message for 18 months.

The respondent summarily dismissed her after the matter was reported. Her claims for discrimination, unfair dismissal and wrongful dismissal failed in the Employment Tribunal. The appeal was limited to wrongful dismissal. The central issue was whether the pressure described as duress was relevant to deciding whether the conduct amounted to a repudiatory breach or gross misconduct entitling the respondent to terminate without notice.

1. Appeal allowed. The Employment Tribunal’s approach to wrongful dismissal was legally flawed and the issue was remitted to the same Tribunal.

2. In a wrongful dismissal claim, the question is whether the employee’s conduct amounted to a breach of contract sufficiently serious to deprive the employee of the contractual right to notice. Depending on the contract, this may involve an express term concerning gross misconduct or the implied term of mutual trust and confidence.

3. Gross misconduct must be assessed objectively. The Tribunal must consider the circumstances of the breach and ask whether the conduct so undermined the trust and confidence inherent in the particular employment contract that the employer could no longer be required to retain the employee. Relevant circumstances may include the pressure on the employee at the time, the nature and seriousness of the conduct, the employee’s role and responsibilities, and the importance of any safeguarding obligations.

4. The Employment Tribunal erred by assuming that duress could not affect whether the conduct entitled the respondent to terminate. Pressure may be relevant to the objective assessment itself, rather than merely a matter of mitigation after a repudiatory breach has been established.

5. The significance of the pressure could differ between sending the message and failing to report it for 18 months. The Tribunal could also consider the claimant’s senior position, her knowledge of safeguarding duties and whether she appeared fully to accept those responsibilities. Those matters required assessment on remission.

6. The EAT could not conclude that only one answer was possible. The matter was therefore remitted to the same Employment Tribunal, as most of its factual findings remained intact and the original wrongful-dismissal submissions had been limited.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment and remitted the wrongful-dismissal issue to the same Employment Tribunal.
• Employment Tribunal: dismissed the complaints of discrimination, unfair dismissal and wrongful dismissal. The judgment was sent to the parties on 28 November 2023.