What is a Section 278 Agreement?

A Section 278 Agreement is a legal agreement between a developer and a highway authority to carry out highway works.

Wrongful Dismissal: Why The Circumstances Behind Misconduct Matter

Most HR professionals are familiar with unfair dismissal claims, but wrongful dismissal is a different type of claim. While unfair dismissal looks at whether it was fair for the employer to dismiss the employee, wrongful dismissal focuses on whether the employer was entitled to dismiss without notice.

In most cases, an employee who is dismissed is entitled to receive either their contractual notice pay or their statutory notice pay. However, an employer can dismiss without notice if the employee has committed a serious breach of contract, often referred to as gross misconduct. In those situations, the employer can treat the employment contract as ended immediately and does not have to pay notice pay.

A recent decision from the Employment Appeal Tribunal (EAT) shows why it is important to look at the full circumstances surrounding an employee’s conduct before deciding whether summary dismissal is justified.

In XX v YY, an assistant head teacher sent a sexual message to someone she believed to be under the age of 18. However, the employer accepted that she had acted while trapped in a coercive and controlling relationship. She was under extreme pressure and feared serious harm to herself and her children if she did not comply with demands being made of her.

When the conduct came to light, she was dismissed without notice. Her wrongful dismissal claim was initially unsuccessful because the tribunal decided that the pressure she was under was not relevant when assessing whether her actions amounted to a serious breach of contract.

The EAT disagreed. It said that the correct approach is to consider the employee’s conduct objectively and in the context of all the circumstances. The question is whether the conduct was serious enough to destroy the trust and confidence needed for the employment relationship to continue. This included taking account of the duress under which the employee had acted.

For HR professionals, the case is a useful reminder that conduct should not be considered in isolation. Even where behaviour appears to amount to gross misconduct, employers should carefully assess any mitigating circumstances before deciding that dismissal without notice, and the loss of notice pay, is justified.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.