XX v YY: EAT rules duress cannot be ignored when assessing gross misconduct

A school's decision to summarily dismiss an assistant head teacher has been thrown back into question after the Employment Appeal Tribunal found that an employment tribunal failed to properly grapple with the role of duress in assessing whether her conduct amounted to a repudiatory breach of contract.

The case concerned a teacher who, while in what was accepted to be a coercive and controlling relationship, sent a sexually inappropriate message to someone she believed to be a child, having been led to fear that she and her children would otherwise face serious harm. She did not report the matter for eighteen months, until her former partner disclosed it to the school. She was summarily dismissed in 2020 following a lengthy disciplinary process, with the panel citing both the message itself and her prolonged failure to report it as breaches of her safeguarding duties as a senior educational professional.

Her claims of disability discrimination, unfair dismissal and wrongful dismissal all failed before the employment tribunal. Only the wrongful dismissal ground was permitted to proceed to appeal, on the basis that the tribunal had treated duress as legally irrelevant to whether her conduct constituted a repudiatory breach entitling the school to dismiss without notice.

His Honour Judge James Tayler agreed that the tribunal's reasoning, though brief, suggested it had proceeded on the footing that duress simply could not affect the answer to whether the conduct was repudiatory. That, he held, was the wrong starting point.

Drawing on the Court of Appeal's reasoning in Eminence Property Developments Ltd v Heaney, the judgement reaffirms that while motive is irrelevant where it goes only to the subjective state of mind of the party in breach, it can become relevant where it reflects something that a reasonable person in the innocent party's position would have known, and which colours how the conduct would objectively be viewed. Applied to the employment context and the implied term of mutual trust and confidence, as set out in Woods v WM Car Services and endorsed by the House of Lords in Malik v BCCI, the test remains an objective one. But objectivity does not mean blindness to context.

What this means in practice is that tribunals assessing whether an employee's conduct amounts to gross misconduct cannot simply ask "did this happen and was it serious", divorced from the circumstances in which it occurred. The pressure the claimant was under when she sent the message may well bear on how that specific act should be characterised. Judge Tayler was careful to note, however, that the same cannot necessarily be said for her subsequent failure to report it over an eighteen-month period, where the duress argument carries less obvious force given her seniority and safeguarding training.

The appeal succeeded, and the matter has been remitted to the same employment tribunal for reconsideration, on the basis that it remains best placed to apply the correct legal framework to findings of fact it has already made.

For employers, the judgement is a reminder that disciplinary panels and tribunals alike need to engage with mitigating circumstances as part of the substantive assessment of whether conduct crosses the threshold for summary dismissal, not merely as a separate question of sanction once breach has already been established. The line between "this happened, and the explanation might justify leniency" and "this happened, and the explanation is relevant to whether it happened in a way that breaches the contract at all" is one tribunals will now need to draw more carefully.