Dismissal of whistle blower

Kuzel v Roche Products Ltd EAT TLR 9 April

The employment tribunal upheld the employee’s claim of unfair dismissal under s98 of the Employment Rights Act 1996, but held that the reason for the dismissal was not, as she alleged, that she had made a protected disclosure. The financial significance of the appeal was that whereas ordinary s98 unfair dismissal is subject to the statutory cap, dismissal for whistle blowing is not. Where an employee raises the whistle blowing issue of s103(A) of the 1996 Act, the position is governed by the Court of Appeal decision Maund v Penwith District Council [1984] ICR 143, 149, where Griffith LJ gave guidance on how to approach conflicting reasons for dismissal. Assuming that the claimant has raised a prima facie case of an inadmissible reason, the onus rests on the employer to prove his reason for dismissal. But what happens where the employer fails to establish the reason he advanced? Did it mean that the tribunal was bound to conclude that the reason was that advanced by the claimant? Section 103A did not provide expressly for the burden of proof. The appeal tribunal derived no direct assistance from the fact that in ordinary unfair dismissal cases, the burden of proving a potentially fair reason for dismissal lay on the employers, but they thought that it did inform the Court of Appeal’s guidance in Maund. The alteration to the burden of proof in the discrimination statute did not alter that approach. The tribunal should ask, had the claimant shown that there was a real issue as to whether the reason put forward by the employers was not the true reason? If so, had the employers proved their reason? If not, had the employers disproved the s103A reason advanced by the claimant? If not, dismissal was for the s103A reason. It followed that the employer’s failure to prove the reason relied on did not automatically result in a finding of unfair dismissal under s103A. However, rejection of the employer’s reason, coupled with the claimant having raised a prima facie case, entitled the tribunal to infer that the s103A reason was the true one; but it remained open to the employer to satisfy the tribunal that the making of a protected disclosure was not the reason for dismissal, even if the real reason as found by the tribunal was not that advanced by the employer. It was not, at any stage, for the claimant to prove the s103A reason. Accordingly, the court directed the matter be remitted to the tribunal to give the respondent employer an opportunity to satisfy the tribunal that the making of the protected disclosures was not the reason or principal reason for dismissal, even if the real reason as found by the tribunal was not that advanced by the employer.