Gebremariam v Ethiopian Airlines Enterprise (T/A Ethiopian Airlines): EAT 4 Feb 2014

EAT UNFAIR DISMISSAL – Constructive dismissal
SEX DISCRIMINATION – Inferring discrimination
There were multiple points in this appeal in which the Claimant appealed against the rejection of her claims for constructive unfair dismissal, direct discrimination, indirect discrimination and detriment by protected disclosure, and the Respondent cross appealed.
(1) On the cross appeal, the so-called ‘Johnson exclusion zone’ did not apply to a case of constructive dismissal based on fundamental breach in the redundancy selection process when the Respondents had withdrawn their notice of dismissal as a result of the Claimant’s appeal, but the Claimant then resigned.
(2) The Employment Tribunal had erred in law in finding that the withdrawal of the notice of dismissal cured their breach: see Buckland (2010 IRLR 45); but
(3) The ET had not considered or made a finding as to whether the Claimant had affirmed the contract before she resigned; remission necessary.
(4) Of the 5 protected disclosures relied upon, which the ET had not addressed in their reasons, the third to fifth either made only allegations (see Geduld 2010 ICR 325) or did not lead to any detriment; but the first and second could not be disposed of in that way; remission necessary.
(5) The ET had permissibly found that the Respondents did not apply the PCP on which the indirect discrimination claim was based.
(6) As to direct discrimination, the ET had adequately considered the issues and were entitled to go, where they had, directly to the ‘reasons why’ question. Their reasoning should not be subjected to an ‘overly critical analysis’; see Hewage (2012 IRLR 70).

Burke QC J
[2014] UKEAT 0439 – 12 – 0402
England and Wales

Employment, Discrimination

Updated: 29 November 2021; Ref: scu.521103