James Wynne and Alexander Robson appeared on opposing sides in the recent case of Gebremariam v Ethiopian Airlines.
Facts
The Claimant was given notice that she was to be dismissed as redundant. She appealed against that decision, following which the Respondent withdrew notice of dismissal. The Claimant then resigned arguing that the Respondent’s conduct in the redundancy process was in breach of the implied term of mutual trust and confidence.
The ET found that the redundancy process (or lack thereof) breached the implied term of mutual trust and confidence. It went on to find that, following her appeal being upheld, that breach could no longer be relied upon. The Claimant’s claim for constructive unfair dismissal therefore failed.
Decision of EAT
At the EAT, the Claimant argued that the ET had thereby fallen foul of the principle in Buckland, in finding that the Respondent had cured the breach.
The Respondent (by its cross-appeal), argued that the Johnson v Unisys exclusion zone means that a breach of contract cannot be relied upon to bring a claim for constructive dismissal, if that breach occurs in relation to the dismissal process.
The EAT found in favour of the Claimant, concluding that the Claimant resigned in response to acts that occurred before the dismissal took place and that the ET had erred in finding that the employer had cured that breach. The EAT found that “the Johnson exclusion zone applies to common law claims for damages which conflict with the statutory jurisdiction as to unfair dismissal”. It did not therefore apply to the pursuit of a statutory claim for unfair dismissal.
The case was remitted to the ET to consider the question of whether the Claimant’s appeal constituted an affirmation of the contract.
The EAT’s Judgment can be read here.
