An assistant head teacher, who was coerced into sending a sexual message to a minor whilst in a controlling relationship, was summarily dismissed for gross misconduct, with her subsequent claims for unfair dismissal, wrongful dismissal and disability discrimination all initially dismissed before she appealed to the EAT.

The claimant was an assistant head teacher.  She was in a coercive and controlling relationship and as part of that she was persuaded to send a message of a sexual nature to someone who she understood to be under the age of 18.  It was accepted by the respondent that failing to do so would have put the claimant and her children at risk of serious harm. The claimant did not report the matter. It was reported to the respondent by the person the claimant was having the relationship with.   This was an 18 month period.
Following a process, the claimant was summarily dismissed for gross misconduct.  The claimant initially brought claims for unfair dismissal, wrongful dismissal and disability discrimination.  All claims were initially dismissed but the claimant brought an appeal to the EAT.

At first instance, all claims were dismissed.  The claimant brought an appeal to the EAT relating to wrongful dismissal.  The argument being that the Tribunal had erred in finding that the argument relating to pressure/duress being irrelevant as to whether there was a breach of contract in terminating the contract.

The Tribunal’s direction on the law relating to wrongful dismissal was very brief which stated:

‘On the question of a wrongful dismissal, the onus is on the respondent to show on the balance of probability that the claimant committed a repudiatory breach of contract and that the respondent dismissed her without notice in response to that.  That is typically spoken of as being ‘gross misconduct’ but the underlying question is whether the actions amounted to a fundamental breach of contract, and that is to be assessed on an objective basis.’

The EAT found this to be very brief.   The EAT found that it was difficult to determine the extent to which it had considered the pressure or duress that the claimant had been under.  There was one sentence on the point which stated that even if the breach was committed under duress the claimant was still in repudiatory breach of contract.  Bearing this in mind, the Tribunal should have considered the duress as had been argued.  The extent to which there had been duress, the position of the claimant within the respondent, her known obligations in relation to safeguarding and the extent to which she could have disclosed it initially are all matters which would need to be properly explored.  As a result, the appeal was allowed and the case was remitted back to the Tribunal. 

An interesting case from a factual perspective and how this leads to some fairly novel legal arguments is demonstrated here.   The issue of duress was raised and that could have an issue in terms of whether there was a breach and the nature of that breach.  However, at the Tribunal it was only touched upon rather than being fully explored.  This was clearly noted by the EAT who stated that it would need to be fully examined in terms of its impact.  This is more of a learning point for Tribunals in ensuring that the arguments raised by the parties are properly analysed within the written judgment.

You can read the case in full here.