Background
The claimant was an assistant head teacher who, between approximately 2015 and 2018, was in a coercive and controlling relationship. In around mid-2016, she sent a sexually suggestive message — asking “are you a virgin” — to a person she believed to be a minor under the age of 18. The respondent accepted that she sent the message under extreme pressure, fearing serious harm to herself and her children if she refused. She did not report the incident or comply with the school’s safeguarding procedures in the 18 months that followed. The matter came to light only when her former partner reported it to the respondent in August 2018, prompting an immediate safeguarding referral, police contact, and the claimant’s suspension.
Following a multi-day disciplinary hearing in 2020, the claimant was summarily dismissed. The dismissal panel acknowledged the coercive relationship and its impact on her mental health but concluded that her safeguarding duties as a senior educational professional — including the 18-month failure to report — were not adequately mitigated by that context. Her internal appeal was dismissed. She then brought Employment Tribunal claims for disability discrimination (something arising in consequence of her recurrent depressive disorder), unfair dismissal, and wrongful dismissal. All three complaints failed at first instance.
The claimant appealed to the Employment Appeal Tribunal on the sole permitted ground: that the Employment Tribunal had erred in law in its treatment of the wrongful dismissal complaint. The core dispute was whether the duress she was under when she sent the message was legally relevant to the question of whether her conduct amounted to a repudiatory breach of contract entitling the respondent to dismiss her without notice.
The Court’s Holding
HHJ Tayler allowed the appeal. The Employment Tribunal had erred in law by proceeding on the basis that duress was irrelevant to whether the claimant’s conduct constituted a repudiatory breach. The ET’s reasoning — that repudiatory breach is assessed objectively and that duress might explain why an employer chooses not to terminate but does not affect the employer’s right to terminate — wrongly excluded the claimant’s circumstances from the substantive legal analysis. The correct approach, drawing on Eminence Property Developments Ltd v Heaney [2010] EWCA Civ 116 and the classic gross misconduct formulation in Neary v Dean of Westminster [1999] IRLR 288, requires the tribunal to consider all circumstances, including the pressure the employee was under, insofar as they bear on the objective assessment of whether the conduct so undermined trust and confidence that the employer could no longer be required to retain the employee.
The EAT noted a material distinction within the claimant’s conduct: the duress she faced may carry significant weight in assessing the act of sending the message, but it is potentially of lesser significance in explaining her 18-month failure to report the matter, during which the coercive relationship was ongoing but there were multiple opportunities to disclose. The EAT also noted that the claimant’s apparent failure fully to accept responsibility for her conduct was a relevant circumstance for the tribunal to weigh.
Because the EAT could not say there was only one possible answer to the gross misconduct question once the correct legal framework was applied, the matter was remitted to the same Employment Tribunal for reconsideration. The EAT observed that remission to the same panel was appropriate given that most factual findings remained undisturbed and the original wrongful dismissal submissions had been brief, with key authorities not having been placed before the ET at first instance.
Key Takeaways
- Duress or extreme pressure on an employee is a legally relevant circumstance when assessing whether conduct constitutes a repudiatory breach of contract (gross misconduct) — it is not merely a factor for the employer’s discretion after the right to terminate has been established.
- The correct test for gross misconduct justifying summary dismissal asks, objectively, whether the employee’s conduct — viewed in light of all the circumstances including any pressure they faced — so undermined the trust and confidence inherent in the employment relationship that the employer could no longer be required to retain them.
- Motive and circumstances, while not determinative of subjective intent, are relevant under the Eminence objective analysis insofar as a reasonable person in the employer’s position would have been aware of them and they shed light on the true character of the breach.
- Where an employee faces coercive control, the weight to be given to that pressure may differ across distinct acts: it may strongly mitigate the primary act carried out under compulsion, while carrying less force in relation to a prolonged subsequent failure to report that occurred after the immediate threat had passed.
Why It Matters
This decision clarifies an underexplored area of employment contract law: the role of duress and coercion in the legal assessment of gross misconduct claims. Employers and tribunals had sometimes treated the objective nature of repudiatory breach as foreclosing any inquiry into the employee’s circumstances, leaving duress only as a discretionary mitigating factor at the sanctions stage. The EAT holds that this is wrong in law — the circumstances, including coercive pressure, must be factored into the threshold question of whether a repudiatory breach occurred at all.
For practitioners, the case underlines the importance of placing full legal argument on wrongful dismissal before the Employment Tribunal at first instance, since the ET here received only brief submissions and no authority on the point. It also signals that courts will look carefully at fact-specific distinctions — such as the difference between an act committed under direct compulsion and a prolonged omission — when weighing how far duress actually explains, and potentially excuses, the employee’s conduct as a whole.