Background

In the case of XX v YY, the claimant was an assistant head teacher who had been subjected to a coercive and controlling relationship over a number of years.

Under extreme pressure from her partner, she sent a message of a sexual nature to someone she believed to be under 18. It was accepted by the employer that she did so because she feared serious harm to herself and her children if she refused. However, she did not report the incident for around 18 months, despite being aware of her safeguarding responsibilities.

The matter only came to light when her former partner reported it to the school. Following an investigation and disciplinary process, the claimant was summarily dismissed for gross misconduct.

She brought claims including unfair dismissal, discrimination arising from disability and wrongful dismissal. Only the wrongful dismissal claim proceeded to the EAT.

EAT decision

The EAT allowed the appeal.

The employment tribunal had accepted that the claimant acted under what it described as "duress" when sending the message. However, it concluded that this was irrelevant to whether her conduct amounted to a repudiatory breach of contract justifying summary dismissal.

The EAT held that this approach was wrong. When determining whether conduct amounts to gross misconduct, a tribunal must consider all relevant circumstances, including factors that may affect an objective assessment of the employee's actions.

The question was whether the claimant's conduct,...

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