Key takeaways
Duress can affect gross misconduct assessment
Tribunal must consider coercion when objectively evaluating the severity of the breach.
Objective test includes circumstances surrounding conduct
All relevant facts, including pressure/duress, inform reasonable employer perspective.
Different weight for conduct versus reporting failures
Duress significant for sending message, less so for 18-month non-disclosure.
An employer is entitled to summarily dismiss the employee without notice where they are in fundamental breach of contract, including where they have committed an act of gross misconduct. The EAT has recently considered the potential legal relevance of the personal duress the employee was under at the time of their behaviour, concluding that it may be relevant to assessing gross misconduct.
The claimant, an assistant head teacher in a school, was in coercive and controlling relationship from about mid‑2015 to August 2018. In about mid‑2016, the claimant sent a message to a person she understood to be a boy under the age of 18 asking, ’are you a virgin’, fearing that if she did not send the message she and her children would be at risk of serious harm. The claimant did not report the message at the relevant time and it only came to light 18 months later after her, by then former, partner reported it to her employer. Following an investigation, the claimant was summarily dismissed for gross misconduct. The dismissal letter noted that the disciplinary panel had accepted that the message had been sent under ’duress…due to an abusive and controlling extra-marital relationship’. The claimant brought various claims, all of which were dismissed by the employment tribunal, but she successfully appealed on the issue of wrongful dismissal.
The EAT held that the tribunal had erred in law in analysing the complaint on the basis that the pressure or duress the claimant was under was irrelevant to whether there had been a breach by the claimant that entitled the respondent to terminate her contract. The EAT held that the proper question was whether the claimant's conduct, having regard to the pressure and duress she was under, and the importance of her safeguarding duties, should objectively be treated as so undermining the trust and confidence inherent in her contract that the respondent could no longer be required to retain her. All circumstances must be considered insofar as they having a bearing on the objective assessment. While motive is irrelevant insofar as it is relied upon to show the subjective intention of the contract‑breaker, it may be relevant if it reflects something that throws light on how the breach would be viewed by a reasonable person.
The EAT has sent the claim back to the same tribunal for reconsideration of the wrongful dismissal issue, noting that the tribunal will need to consider whether the claimant’s conduct, having regard to the pressure she was under at the time it occurred, and the importance of her safeguarding obligations, should objectively be treated as so undermining the trust and confidence which was inherent in her contract of employment that the employer could no longer be required to keep her in their employment. The EAT specifically noted that, while duress may be significant in relation to sending the message, it was potentially of less significance regarding the claimant’s 18-month failure to report the fact she had done so.
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