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."