The case of XX v YY [2026] EAT 89 considers whether the employer acted lawfully by summarily dismissing an employee who had committed misconduct under pressure or “duress” from a third party and whether in all the circumstances the employee was entitled to notice.
Facts
The Claimant (“XX”) was an assistant headteacher. The Claimant was employed by the Respondent (“YY”) between 1 September 2014 until 9 June 2020 when the Claimant was summarily dismissed for gross misconduct based on:
- sending an inappropriate message of a sexual nature to a person she understood to be under 18; and
- failing to report the matter or follow the school’s safeguarding procedures.
From around mid-2015 to August 2018, the Claimant was in a coercive and controlling relationship. In mid-2016, the Claimant, under pressure from her partner, sent a message of a sexual nature to a person she believed to be under 18. The Claimant took no steps to report the matter to the Respondent or take any steps under the school’s safeguarding procedures. The matter only came to light when the Claimant’s partner reported it in August 2018.
The Claimant was summarily dismissed for gross misconduct. It was accepted by the Respondent that the Claimant acted under extreme pressure, which was described as “duress”, fearing harm to herself or her children if she refused. After sending the message, the Claimant did not report the incident for approximately 18 months, despite being aware of safeguarding obligations.
The Claimant brought claims including unfair dismissal, disability discrimination, and wrongful dismissal. All claims were dismissed by the employment tribunal at first instance.
The Claimant appealed against the employment tribunal’s decision. The appeal proceeded in relation to the wrongful dismissal claim only, in which the Claimant argued that the fact that the her actions were taken under duress prevented them from amounting to a repudiatory breach of contract to justify her summary dismissal, without notice or a payment in lieu of notice. A wrongful dismissal claim arises where a person is dismissed without the employer giving the necessary notice under contract, which is only permitted in cases where gross misconduct is established.
Decision
The Employment Appeal Tribunal (EAT) allowed the appeal and held that the employment tribunal at first instance had erred in law in its approach to the wrongful dismissal claim.
For a claim for wrongful dismissal to succeed, a claimant must show that they were entitled to notice when the employer dismissed them. As such, the EAT’s starting point was to consider whether the employer was entitled, by the Claimant’s breach of an express or implied contractual term, to terminate the contract of employment without notice or a payment in lieu of notice. The EAT found that the employment tribunal had erred in finding that the Claimant’s duress could not affect the answer to the question of whether she had breached her contract in a manner such that the employer was entitled to terminate the contract without notice.
While the EAT confirmed that the existence of a repudiatory breach is to be assessed objectively, tribunals must nevertheless take into account all the surrounding circumstances, including, where relevant, the employee’s motives. In this case, the tribunal ought to have considered the duress under which the Claimant was operating. The proper question was whether the Claimant’s conduct — viewed in light of that duress, together with her significant safeguarding responsibilities and senior role — should objectively be regarded as so undermining trust and confidence that the Respondent could no longer reasonably be expected to continue her employment. The EAT further observed that, although pressure or duress may carry considerable weight in explaining the Claimant’s conduct in sending the message, it is likely to be of less relevance in accounting for her failure to report the matter over the following 18 months.
The case was remitted back to the same employment tribunal to reconsider the wrongful dismissal claim applying the correct legal test.
Key takeaways
This decision provides important clarification on the law regarding wrongful dismissal and gross misconduct:
- The assessment of whether conduct amounts to a repudiatory breach is fact-sensitive and objective, requiring consideration of all surrounding circumstances, including any duress or coercion.
- While an employee’s motive or intent is not decisive, it can be relevant where it affects how the conduct would be viewed by a reasonable employer.
- Tribunals must not treat conduct in isolation; they must assess whether, in context, it so fundamentally undermines trust and confidence that summary dismissal is justified.
The case highlights the distinction between:
- unfair dismissal (reasonableness of the employer’s decision); and
- wrongful dismissal (whether there was a right to dismiss without notice).
For schools and MATs, the case reinforces that safeguarding obligations remain highly significant, but contextual factors (including vulnerability, coercion, or mental health) must still be properly weighed when assessing gross misconduct. It is also a reminder that even where misconduct is of a kind such as to amount to the most serious misconduct under school policies, the circumstances must be carefully considered before concluding that gross misconduct has occurred.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.