Permission to appeal in disability and whistleblowing case

15th July 2014

In Johnson v MITIE Asset Management UKEATPA/0046/14/LA, Peter Linstead has gained permission at a rule 3(10) hearing to take an appeal to an Employment Appeal Tribunal final hearing. This case revolves around a redundancy dismissal in a classic restructure involving a “pool of one” for redundancy, alleged to be a sham. The appeal involves a comprehensive attack on the Judge’s three linked findings that the reason for dismissal was not because of a protected disclosure, that the claimant was not disabled and that in any case, sufficient reasonable adjustments were made.┬áThe important points of law in the appeal focus particularly on the exercise of the EAT’s powers to reopen matters remit cases to first instance tribunals:

  1. At what point is a tribunal’s reasoning so inadequate that a “Burns/Barke” remission to the tribunal for clarification is incapable of curing the defect?
  2. Where there is a clear finding that the reason for dismissal is redundancy, but where a finding that there were no protected disclosures means that it has not been investigated whether they are the cause, can the question of the reason for dismissal be re-opened on appeal?



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