Posted by Gemma Ospedale, Partner
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“Johnson exclusion” does not preclude constructive dismissal claim
In Gebremariam v Ethiopian Airlines Enterprise t/a Ethiopian Airlines the EAT has held that what is commonly known as the “Johnson exclusion” (the principle that an employee who is dismissed cannot recover damages at common law for the way in which the dismissal took place) did not prevent an employee selected for redundancy, notice for which was then withdrawn, from relying on a flawed redundancy selection process as a fundamental breach of contract which entitled her to resign and bring a constructive unfair dismissal claim.
The Tribunal however had considered that the withdrawal of the threat of dismissal when the employer realised its failings following an appeal against the decision by the employee, effectively cured the breach of contract and furthermore the Tribunal had not made any finding about whether the employee had affirmed the contract prior to resignation.
Consequently this, and the question of whether the Claimant’s whistle blowing allegations were justified, were remitted back to the same Tribunal.
The interesting point in this case is that the EAT gave a lot of consideration to the Johnson point where it is obvious, and the EAT accepted, that Johnson could not apply to a claim of constructive unfair dismissal since it only applies where a common law claim conflicts with a statutory jurisdiction of unfair dismissal. There was no such conflict in this case as the Claimant was not seeking a common law remedy; rather she was seeking to rely on the employer’s breach of contact to establish her claim for constructive unfair dismissal. The EAT went on to comment that in this case it doubted whether the exclusion provided for in Johnson could apply to a claim of wrongful constructive dismissal if this was pursued in the Civil Courts. However these were obiter comments.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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