Unfair dismissal - burden of proof
by Jenny
In the case of Kurzel v Roche Products Ltd the Court of Appeal has given some guidance in respect of the burden of proof in cases where both parties allege different reasons for the dismissal and one of the reasons is an inadmissable reason. In this case the inadmissable reason was that put forward by the employee of protected disclosure (whistleblowing).
Lord Justice Mummery set out the principles:
1. It is for the employer to show that there was a fair reason for the dismissal.
2. There is no burden on the employee to disprove the reason put forward by the employer nor is there a burden to prove another reason, even where the employee is asserting that the dismissal was for an inadmissable reason.
3. However, the employee who asserts that there was a different and admissable reason for the dismissal, such as making a protected disclosure, must produce some sort of evidence supporting the case that there was an inadmissable reason and challenging the evidence produced by the employer.
4. The employer can defeat a claim of an inadmissable reason for dismissal either by proving a different reason or by successfully contesting the reason put forward by the employee.
5. If the Tribunal is not satisfied that the reason for dismissal is that put forward by the employer, it is open to to it to find that it is the reason put forward by the employee, but it does not have to find so.
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