Archive for Case Updates

Can an employer’s withdrawal of dismissal ‘cure’ a breach of mutual trust and confidence?

Ms Gebremarian was given notice by Ethiopian Airlines that she was dismissed as redundant. Ms G then went on to appeal the dismissal and as a result, the notice of dismissal was withdrawn.

business-articlesHowever Ms G later resigned and claimed constructive dismissal on the basis that Ethiopian Airlines’ conduct throughout the redundancy process was in breach of the implied term of mutual trust and confidence.

Originally, the Employment Tribunal (ET) found that following the withdrawal of the dismissal, breach of mutual trust and confidence could no longer be relied on. However on appeal the Employment Appeal Tribunal (EAT) disagreed, finding that Ms G resigned in response to acts that occurred before the dismissal process.

The case has been referred back to the ET to reconsider certain findings including that, in effect, Ethiopian Airlines cured the breach of contract by withdrawing notice of dismissal, apparently contrary to the principle in Buckland v Bournemouth University [2010] EWCA Civ 121 – Court of Appeal (Civil Division) .

This will be an eagerly awaited judgment for employers, as being able to cure a fundamental breach of contract in this manner would be a powerful tool to manage the risk of tribunal proceedings.

Gebremariam v Ethiopian Airlines UKEAT/0439/12/0402

How vital is it that employers try to provide an impartial grievance process?

Very important, held the EAT. An employer’s failure to provide an impartial grievance appeal process (by allowing an employee to appeal to a different manager) could amount to a breach of the implied term of trust and confidence and therefore form the basis of a constructive dismissal claim.

elimage5This case serves as a useful reminder to employers to consider carefully who hears the different stages of grievance (and disciplinary) hearings. Where a different manager is not available, smaller employers may have to consider outsourcing the role to an HR consultant or other appropriate third party to ensure hearings are impartial.

Blackburn v Aldi Stores Ltd UKEAT/0185/12/JOJ

Should employers make their own judgement about whether or not an employee is disabled, not just rely on a medical report?

Yes, held the Court of Appeal. When deciding whether the employer should have known of the employee’s disability, occupational health’s unsupported statement that the employee was not disabled should not have trumped all the other facts of which the employer was aware.

elimage6This decision seems sensible. It is uncomfortable to think that an employer could outsource its judgement on the legal test of disability to an occupational health adviser, and thereby avoid reasonable adjustment obligations by failing to apply its own mind to the legal questions. The Court of Appeal has given clear practical guidance to employers: when asking occupational health questions that might help inform a view that an employee is or is not disabled, employers should tailor those questions to the particular circumstances of the case.

Gallop v Newport City Council [2013] EWCA Civ 1583