Gebremariam v Ethiopian Airlines Enterprise (t/a Ethiopian Airlines)

A repudiatory breach cannot be cured by the employer’s later withdrawal of the impugned decision. The employer may make amends and invite affirmation, but whether the employee has affirmed the contract is a fact-sensitive question. An employee does not automatically affirm merely by appealing against a dismissal decision.

The Johnson exclusion zone is confined to common-law damages claims which duplicate the statutory unfair-dismissal remedy. It does not prevent an employee relying, in a statutory constructive-dismissal claim, on a fundamental breach arising from a redundancy dismissal notice that was withdrawn before it took effect.

A disclosure under section 43B requires information, rather than a bare allegation. A tribunal may determine a direct discrimination claim by deciding the reason why treatment occurred, without a mechanistic burden-of-proof analysis where the facts permit positive findings.

The claimant resigned after the respondent gave her notice of redundancy following maternity leave, upheld her appeal and withdrew the notice. The Employment Tribunal dismissed claims for constructive unfair dismissal, protected-disclosure detriment, direct discrimination and indirect age discrimination.

On appeal, the claimant challenged the Tribunal’s conclusion that withdrawal of the redundancy notice removed the fundamental breach, its treatment of five asserted protected disclosures, and its rejection of the discrimination claims. The respondent cross-appealed, contending that the claim fell within the Johnson exclusion zone and that the claimant had affirmed her contract.

The central issues were whether the redundancy process could support constructive dismissal after the notice was withdrawn, whether the claimant had affirmed the contract, and which asserted communications could found a protected-disclosure claim.

1. Appeal allowed in part; cross-appeal allowed in part; remitted. The Tribunal erred in treating the respondent’s acceptance of the appeal, withdrawal of the redundancy notice and proposed fresh process as curing its admitted fundamental breach of trust and confidence. Under Buckland, a repudiatory breach remains capable of acceptance by the innocent party; the employer can only make amends and invite affirmation.

2. The Tribunal had not determined whether the claimant affirmed the contract before resigning. Lodging an appeal does not automatically amount to affirmation. It may instead be an attempt to obtain withdrawal of the employer’s position or to obtain amends. Whether it amounts to affirmation depends on the evidence. The constructive-dismissal issue was remitted to the same Tribunal; if affirmation is established the claim fails, and otherwise it succeeds.

3. The respondent’s proposed Johnson defence failed. The exclusion zone concerns common-law damages claims for loss caused by dismissal and overlapping the statutory unfair-dismissal regime. Here the redundancy notice was withdrawn before it took effect. The alleged contractual breaches preceded any dismissal and were relied on within a statutory constructive-dismissal claim, not as a parallel common-law damages claim.

4. The protected-disclosure appeal succeeded only concerning the first and second alleged disclosures. The Tribunal gave no reasons resolving them, and it was possible that they conveyed information which the claimant reasonably believed tended to show a failure to comply with a legal obligation. The third communication was no more than an allegation. The fourth and fifth communications could not have caused the asserted detriments, which had already occurred or could not realistically have been investigated before resignation.

5. The indirect discrimination claim failed because the only pleaded PCP was LIFO and the Tribunal permissibly found that it had not been applied. The direct discrimination findings also stood. The Tribunal was entitled to make positive findings on the evidence and proceed directly to the reason why the claimant was treated as she was. Its reasons were sufficient and were not to be subjected to an unduly critical analysis.

• Employment Appeal Tribunal: Appeal allowed in part. The constructive unfair-dismissal and limited protected-disclosure issues were remitted to the original Employment Tribunal.
• Employment Tribunal, Watford: By a judgment sent on 23 May 2012, dismissed the claimant’s claims for constructive unfair dismissal, discrimination and protected-disclosure detriment.