In this case, Dr Kuzel claimed that the real reason she was dismissed was because she had made protected disclosures about certain of her employer’s activities. The dismissal was therefore ‘automatically’ unfair and there should be no cap placed on the amount of compensation payable. Roche Products Ltd. argued that the reason Dr Kuzel was dismissed was either a conduct reason or ‘some other substantial’ reason.
The Employment Tribunal (ET) found that Roche had failed to demonstrate a potentially fair reason for Dr Kuzel’s dismissal but neither could it find evidence to support her claim that she was really dismissed for ‘whistleblowing’, ruling that the claim was ‘not made out’. The use of this phrase caused disagreement as to whether or not the ET was saying that the burden of proof lay with Dr Kuzel. The ET held that the reason for the dismissal was Dr Kuzel’s line manager’s ‘catastrophic loss of temper’ and his failure to follow the advice of the company’s Human Resources Director with regard to the situation.
The Employment Appeal Tribunal (EAT) held that the ET’s approach to the burden of proof of the whistleblowing claim was not legally correct and remitted the case to the same ET for a fresh hearing.
Dr Kuzel appealed, arguing that as Roche had failed to prove that it had a fair reason for dismissing her, the ET should, as a matter of law, have accepted the reason she put forward. The Court of Appeal rejected this argument. The principal reason for a dismissal is a question of fact for the ET. It is for the employer to prove the reason for the dismissal as it knows better than anyone else why the employee was dismissed. In this case, it was for Roche to show that the reason for Dr Kuzel’s dismissal was a fair one. In contesting the reasons put forward by Roche, there was no burden of proof on Dr Kuzel to disprove these reasons, let alone prove a different reason. When an employee asserts that the dismissal was for a different reason altogether, some evidence to support their claim must be produced but they do not have to discharge the burden of proving that the dismissal was for the different reason for their claim to succeed.
If the employer does not demonstrate that the reason for dismissal was the one it put forward, it is open to the ET to find that the reason was that claimed by the employee. However, ‘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 is not necessarily so’. The ET may also find that the true reason for dismissal was one that was not put forward by either side.
The Court of Appeal therefore dismissed Dr Kuzel’s appeal and reinstated the decision of the ET. Roche was liable for ‘ordinary’ unfair dismissal because it had not demonstrated its case, but the dismissal was not automatically unfair because Roche had shown that the making of protected disclosures by Dr Kuzel was not the reason for her dismissal. The compensation awarded was therefore limited to £56,800, the maximum amount payable in unfair dismissal cases at that time.