A recent Employment Appeal Tribunal (EAT) decision is a useful reminder that gross misconduct dismissals are not always as clear-cut as they look. Even where an employee’s actions appear serious, employers need to consider the full picture – including any pressure the employee was under – before deciding that dismissal without notice is justified.
The case, referred to here as XX v YY [2026] EAT 89 to protect those involved, concerned an assistant head teacher dismissed for gross misconduct after sending an inappropriate message to someone whom she believed was under 18 years old, and failing to report it under the school’s safeguarding procedures. She said she had acted under duress from her partner, having been in a controlling and coercive relationship at the time. She claimed to have been scared for her own, and for her children’s safety, had she refused to send the message. The school accepted this, but dismissed her anyway; the message only came to light around two years later, when her partner reported it himself.
Her tribunal claims were all rejected, but she appealed on one point: wrongful dismissal – whether the school was entitled to dismiss her without notice or notice pay. This is a narrower, contractual question than unfair dismissal. It asks only whether the employee’s conduct was serious enough to amount to a fundamental breach of contract, destroying the trust and confidence at the heart of the employment relationship. An employer can win on unfair dismissal but still lose on wrongful dismissal, or vice versa.
What the EAT decided
The EAT held that the original tribunal had applied the wrong test. Deciding whether conduct justifies dismissal without notice is assessed objectively, but ‘objectively’ does not mean ignoring context: relevant circumstances, including duress, must be weighed in.
The EAT drew a useful distinction: the duress carried real weight in explaining why the employee sent the message, but much less weight in explaining why she then failed to report it for the following eighteen months, despite knowing her safeguarding obligations throughout. The case has been sent back to the tribunal to reconsider using the correct test.
What this means for employers
- Context matters, even in serious cases. Consider all surrounding circumstances – including coercion, vulnerability, or health issues – not just the act itself.
- Motive isn’t decisive, but it is relevant to how a reasonable employer would view the conduct.
- Different elements of the same course of conduct can carry different weight – assess each element separately rather than as one block.
- Safeguarding remains critical. This case doesn’t soften safeguarding obligations; it confirms that context must still be properly considered before concluding that dismissal without notice is justified.
- Unfair and wrongful dismissal are separate tests. A fair process doesn’t automatically mean you’re entitled to withhold notice or notice pay.
Practical takeaway: where an employee raises coercion, duress, vulnerability, or mental health during a disciplinary process, investigate it; don’t simply note it and move on. Make sure that any decision letter or investigation report shows this context was genuinely considered.
If you are dealing with a disciplinary matter involving complex personal circumstances, please contact one of our HR Advisors by emailing hr@perspectivehr.co.uk or by phoning 01392 247436.