In Kuzel v Roche Products Ltd (2008) EWCA Civ 380 the Court of Appeal has handed down a useful judgement on the burden of proof in unfair dismissal cases. When an employee brings a claim of unfair dismissal, section 98(1) of the Employment Rights Act 1996 provides that it is for the employer to show the reason for any dismissal, and that it is a fair reason within the meaning of the legislation. In the case, the employer contended that a dismissal was fair due to a breakdown in the trust and confidence between her and her manager. The employee, Dr Kuzel, claimed that her dismissal was connected with her having made a protected disclosure. The tribunal rejected both versions, and found that she had been dismissed because her manager lost his temper. Where an employer fails to prove it's reason for the dismissal, there is always a finding of unfair dismissal due to making a protected disclosure would disapply the usual upper limit of the compensatory award - important to a woman with a six figure salary! She failed to do this, and the argument before the court was where the burden lay in establishing the reason for the employee's dismissal once the employer's stated reason has failed.

 The Court of Appeal provided a useful analysis on the burden of proof in these cases, and confirmed that the burden was still on the employer to disprove the reasons advanced by the employee. The case provides a useful step-by-step guide to dealing with the issues which I've modified to apply generally:

(1) Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?

(2) If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee's stated reasons are correct.

(3) Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it's own reason for the dismissal it may still have disproved that of the employee.

(4) If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.

Employees often couple a general unfair dismissal claim with another "automatic" reason, so this case is a useful research as to the evidential hurdles each party must cross.

Written by Joseph Neville, Pupil at New Walk Chambers, specialising in Employment Law.