Constructive Dismissal and the Johnson exclusion zone

Thanks to David Leslie of Lyons Davidson for preparing this case summary

Does the Johnson exclusion zone apply in a case of constructive dismissal based on fundamental breach in the redundancy process where the Respondent has withdrawn notice of dismissal as a result of the Claimant's appeal, but the Claimant then resigns? No, holds the EAT in Gebremariam v Ethiopian Airlines.

Ms Gebremariam was given notice that she was to be dismissed as redundant. Following her appeal, the Respondent withdrew notice of dismissal. Ms Gebremariam resigned arguing that the Respondent's conduct in the redundancy process was in breach of the implied term of mutual trust and confidence.

The Employment Tribunal found that although the redundancy process breached trust and confidence, following the successful appeal, that breach could no longer be relied upon.

Ms Gebremariam appealed. The Respondent cross-appealed, arguing that following Johnson v Unisys, a breach of contract cannot be relied upon, to bring a claim for constructive dismissal, if it occurs in relation to the dismissal process.

The EAT disagreed, finding that Ms Gebremariam resigned in response to acts that occurred before the dismissal took place.

The EAT commented further that "the Johnson exclusion zone applies to common law claims for damages which conflict with the statutory jurisdiction as to unfair dismissal". It therefore did not apply where the Claimant was pursuing the statutory claim of unfair dismissal.

The case has been referred back to the Employment Tribunal to reconsider certain findings including that, in effect, the Respondent cured the breach by withdrawing notice of dismissal, apparently contrary to the principle in Buckland v Bournemouth University.