In a case against pharmaceutical company Roche an ex-employee
who was unfairly dismissed claimed that the reason for her
dismissal was that she was a whistleblower. If the Employment
Tribunal (ET) had accepted that submission her damages would have
been uncapped.
Roche failed to prove that it had a fair reason for the
dismissal of Dr Ryta Kuzel, and her lawyers said that in that
situation the ET must adopt the reason for the dismissal put
forward by the ex-employee, which was in this case that she was
fired for whistleblowing.
The Court of Appeal rejected that argument. "If the employer
does not show to the satisfaction of the ET that the reason was
what he asserted it was, it is open to the ET to find that the
reason was what the employee asserted it was," said Lord Justice
Mummery in the ruling. "But it is not correct to say, either as a
matter of law or logic, that the ET must find that, if the reason
was not that asserted by the employer, then it must have been for
the reason asserted by the employee. That may often be the outcome
in practice, but it is not necessarily so."
The Court said that employers must prove that they had a fair
reason for dismissal of the employee. This does not change just
because the employee has an alternative explanation for their
dismissal. They must, though, back up their assertions in some
way.
"When an employee positively asserts that there was a different
and inadmissible reason for his dismissal, he must produce some
evidence supporting the positive case, such as making protected
disclosures," said Lord Justice Mummery.
"This does not mean, however, that, in order to succeed in an
unfair dismissal claim, the employee has to discharge the burden of
proving that the dismissal was for that different reason. It is
sufficient for the employee to challenge the evidence produced by
the employer to show the reason advanced by him for the dismissal
and to produce some evidence of a different reason," he said.
Employment law specialist Ben Doherty said that the case
demonstrated that the burden of proof in employment cases still
lies with the employer.
"This case is of interest because it confirms that when the
employee puts forward an alternative unfair reason for the
dismissal, responsibility for proving the fairness of the dismissal
still lies with the employer," he said.
"They have to show both a fair reason and a fair procedure. Even
if the former employee makes a whole case about why they think they
were fired – in this case because they said they were a
whistleblower – then they don't have to prove that case to succeed
in showing that the reason put forward by the employer was not the
real reason for dismissal," said Doherty.
The Court found that Roche had not proved that it had a fair
reason for Kuzel's dismissal, and that Kuzel's argument that she
was dismissed for whistleblowing had failed.
Lord Justice Mummery wrote: "An employer who dismisses an
employee has a reason for doing so. He knows what it is. He must
prove what it was."
He continued: "It was for Roche to show the reason for
dismissal. Roche could do this by adducing evidence supporting the
reason relied on by it. That failed. It could also do so by
contesting the evidence produced by Dr Kuzel that the making of
protected disclosures was the true reason for her dismissal. That
succeeded."
