| 
Wrongful dismissal: why the circumstances behind misconduct can matter
Adrian Fryer
Most HR professionals will be familiar with unfair dismissal claims, but wrongful dismissal is a different type of claim altogether. Whereas unfair dismissal focuses on the fairness of the employer’s decision to dismiss, wrongful dismissal is a contractual claim that looks at whether the employer was entitled to terminate employment without notice.
Generally, an employee who is dismissed is entitled to receive their contractual or statutory notice pay. However, an employer can dismiss without notice where the employee has committed a repudiatory breach of contract – often referred to as gross misconduct. In those circumstances, the employer is entitled to treat the contract as at an end and does not have to make payments that would otherwise have been due during the notice period.
A recent Employment Appeal Tribunal (EAT) decision highlights the importance of considering the full circumstances when deciding whether an employee’s conduct amounts to such a breach.
In XX v YY, an assistant head teacher sent a sexual message to someone she believed to be under 18. The employer accepted, however, that she had acted while in a coercive and controlling relationship and under extreme pressure, fearing serious harm to herself and her children if she did not comply with demands made of her.
When the matter later came to light, she was summarily dismissed. Her wrongful dismissal claim initially failed, with the tribunal finding that the pressure she was under was irrelevant when deciding whether her conduct amounted to a repudiatory breach of contract.
The EAT disagreed. It held that the correct question is whether the employee’s conduct, viewed objectively and in all the circumstances, was serious enough to destroy the trust and confidence necessary for the employment relationship to continue. Those circumstances included the duress under which the employee had acted.
For HR professionals, the case is a reminder that conduct should not be assessed in isolation. Even where behaviour appears to amount to gross misconduct, employers should carefully consider any mitigating circumstances before concluding that summary dismissal – and the loss of notice pay – is justified.