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• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of XX and YY, in which the Employment Appeal Tribunal was asked to determine, when considering gross misconduct, what the relevance of the fact the employee was under duress at the time of their behaviour was. X was dismissed for gross misconduct from her role as an assistant head teacher in a school after the school discovered that several years earlier she had sent an inappropriate message to an underage boy asking him if he was a virgin. When the message was sent, X was in a coercive and controlling relationship and feared that she and her children would be at risk of serious harm if she did not meet her partner's demands to send the message. X did not report the inappropriate message to the school at the relevant time and it only came to light some 18 months later when her former partner reported it to the school. The disciplinary panel accepted that the message had been sent under duress due to an abusive and controlling relationship, but decided to dismiss X for gross misconduct. X brought various claims, all of which were dismissed by the Employment Tribunal. X successfully appealed solely on the issue of wrongful dismissal. The Employment Appeal Tribunal held that the Employment Tribunal had erred when analysing her wrongful dismissal claim, when it held that the pressure or duress X was under was irrelevant to whether there had been a breach entitling the school to terminate her contract. The Employment Appeal Tribunal noted that the real question was, having due regard to the pressure and duress X was under, and the importance of her safeguarding duties, whether her conduct should objectively be treated as so undermining the trust and confidence inherent in her contract that the school could no longer be required to retain her services. If they have a bearing on this objective assessment, all relevant circumstances must be considered. Although an employee's motive is irrelevant, so far as it is relied on to show their subjective intention, it may nevertheless be relevant if it reflects something that throws light on how the breach would be viewed by a reasonable person. The claim was sent back to the same tribunal for reconsideration of the wrongful dismissal issue. In practical terms, the Employment Appeal Tribunal's decision means the fact an employee was under extreme duress. At the time they committed an act of misconduct may be a relevant factor in determining the severity of their behaviour and the appropriate sanction. However, as was noted, in this case, while duress may be a significant factor in relation to X's decision to send the inappropriate message, it was potentially of less significance regarding X's 18-month failure to report the fact she had done so to the school. Look out for further episodes in this series to stay up to date on all things HR and employment law related.