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. The 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:
(i) 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?
(ii) 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?