XX v YY – “I only did it because I was under duress, so it can’t be gross misconduct.”

“I only did it because I was under duress, so it can’t be gross misconduct.”

Not necessarily, said the Employment Appeal Tribunal (EAT).

This week’s case highlights an important distinction between unfair dismissal and gross misconduct, and why the circumstances behind an employee’s conduct can matter when assessing whether an employer was entitled to dismiss without notice.

In XX v YY, an assistant head teacher was dismissed after sending a sexual message to a person she believed to be under 18 and then failing to report the incident for 18 months.

A crucial fact was accepted by the employer:

• The message was sent while the employee was in a coercive and controlling relationship;
• She feared that she and her children would suffer serious harm if she did not comply; and
• The employer accepted that she acted under what was described as “duress”

Why did the EAT intervene?

The Employment Tribunal accepted that the employee acted under duress but concluded that this made no difference to whether her conduct amounted to gross misconduct.

The EAT disagreed.

 

It confirmed that when deciding whether conduct is serious enough to justify summary dismissal, a Tribunal must consider all relevant circumstances, including the pressure or duress under which the employee acted.

 

In other words:

 

The context behind the conduct may be relevant when assessing whether trust and confidence has been destroyed.

 

That does not mean duress automatically excuses misconduct.

 

The EAT noted that:

 

• The employee held a senior safeguarding role as Deputy Headteacher;

• She knew her safeguarding responsibilities;

• Her failure to report the incident for 18 months remained a significant issue; and

• The Tribunal was entitled to consider whether the delay undermined the impact of the duress argument and whether the necessary intent was there – gross misconduct has to be wilful.

 

The case was sent back to the same Tribunal to reconsider whether the conduct amounted to gross misconduct for the purposes of wrongful dismissal.

 

The Key Takeaway

• Gross misconduct is not assessed in a vacuum.
• Tribunals must consider the surrounding circumstances of the conduct.
• Pressure, coercion or duress may be relevant when evaluating whether trust and confidence has been fundamentally damaged.
• However, serious safeguarding failures may still justify summary dismissal despite those mitigating factors.
• The outcome will always depend on the specific facts.

Question for employers:

When assessing potential gross misconduct, are your disciplinary decisions considering not just what happened, but why it happened?

If you are or someone you know is going through something similar, please get in touch with us.